Gujarat High Court
Ravjibhai Kalabhai Bhoi vs State Of Gujarat on 22 March, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/6140/2021 ORDER DATED: 22/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6140 of 2021
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RAVJIBHAI KALABHAI BHOI
Versus
STATE OF GUJARAT
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Appearance:
(MR BIPIN I MEHTA)(456) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR. JAL SOLI UNWALA, SENIOR ADVOCATE with MR VICKY B
MEHTA(5422) for the Petitioner(s) No. 1,2,3,4,5,6,7
MS. JYOTI BHATT, AGP, for the Respondent(s) No. 1,5
MR DEEP D VYAS(3869) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 22/03/2022
ORAL ORDER
[1] This petition under Article 226 of the Constitution of India is filed by the petitioners seeking direction to the respondent-corporation to implement the sanctioned Final Town Planning Scheme No.128 (Vatva-Aslali) by handing over the possession of final plot Nos.79/1, 78/8, 112/5 and 78/1 of Vavta, Taluka and District: Ahmedabad, which were allotted to the petitioners. The petitioners were also prayed that the original plots which were reconstituted from the survey numbers of village Vatva and in occupation of the petitioners may not be disturbed till the final plots are allotted to the petitioners.
[2] It is the case of the petitioners that the petitioners who are owners of land bearing survey Nos. 157/1, 190/1/1, 156/2/2 and 156/1/1/3 of village Vatva. With the sanctioning of the draft Town Planning Scheme No.128, survey numbers running in the name of the petitioners were reconstituted as original plots nos. 79/1, 78/8, 112/5 and 78/1. Upon the primary town planning scheme being sanctioned, the plots of lands allotted to the petitioners were final plot Nos. 79/1, 78/8, 112/5 and 78/1. According to the petitioners, Page 1 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022 C/SCA/6140/2021 ORDER DATED: 22/03/2022 there exist illegal encroachment on the aforesaid final plots allotted to the petitioners and after sanctioning the preliminary town planning scheme, the petitioners are entitled to vacant and peaceful possession of the final plots. Further, the petitioners are not yet given till date the vacant and peaceful possession of the final plots on one hand, however at the same time with the sanctioning of the town planning scheme, while accepting/implementing such scheme, the petitioners will have to handover the vacant and peaceful possession in the original plots reconstituted from the survey numbers running in the name of the petitioners.
[3] Learned senior advocate Mr. Jal Soli Unwala appearing for the petitioners submitted that the petitioners had made request to the respondent-authorities namely the Municipal Corporation which is the implementing authority of the Town Planning Scheme, bringing to their notice about this aspect, however, nothing has been done by the respondent-corporation. Inspite of the above fact situation, the petitioners have been served with the notice which is placed at Annexure-D with respect to original plots number 79/1 under Section 48A and 68 of the Gujarat Town Planning and Urban Development Act, 1976 (for short "the Act") read with Rule 33 of the Gujarat Town Planning and Urban Development Rules 1979 (for short "the Rules").
[4] As against which the petitioners did make detailed representation on 07.12.2020 and 01.02.2021, indicating that town planning scheme has not been finalized for more than a decade and that unless the possession of the final plot has not been handed over to the petitioners, the original plot may not be disturbed. Despite this, the respondent-corporation is insisting upon to handover the possession of the original plots ostensibly for the purpose of laying down/infrastructure.
Page 2 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022C/SCA/6140/2021 ORDER DATED: 22/03/2022 [5] Learned senior advocate has argued that action on the part of the respondent-corporation in taking over the possession of the original plots reconstituted from the original survey numbers belonging to the petitioners without handing over the possession of the final plots which even as per the scheme are allotted to the petitioners, is an arbitrary. The petitioners are justified and even as per the scheme, entitled to vacant and peaceful possession of the final plots. It is also argued that the final plots which are allotted to the petitioners were bearing survey No.251 and reconstituted as O.P.No.64/S and on this plot of land there exist residential in the name of Vishva Karma Nagar Vasahat, which is illegal and encroached on the Government land. Despite this, inspite of allotting the final plot to the petitioners, which is free from all encumbrances and encroachment, the petitioners have not been given such final plots. Learned advocate has relied upon the decision in the case of Amarsinh Shanaji Thakore v/s. State of Gujarat, reported in 2004 (7) GLH 127, wherein it is held that the while taking the possession of the original plot from the owners, local authority is required to handover the possession of the final plot to the owners and occupiers of the original plot. Learned senior advocate for the petitioners has therefore, argued that by the arbitrary action of the respondent-corporation, the petitioners for no reason would be put to hardship and therefore, has prayed for either implementation of the town planning scheme in its entirety or at least to handover the vacant and peaceful possession of the final plots which are allotted to the petitioners even as per the Town Planning Scheme and redistribution form.
[6] Learned senior advocate has relied upon the decision in the case of the Municipal Corporation for Greater Bombay and Another v/s. The Advocate Builders (India) Private Limited and others, reported in 1971 (3) SCC 381 to substantiate his argument that even as per the procedure adopted under the Page 3 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022 C/SCA/6140/2021 ORDER DATED: 22/03/2022 provisions of the Act, the rights of the owner of the original plot would determine and as per the scheme, reconstituted or final plots are to be allotted to them and therefore, the petitioners are entitled to the possession of vacant and peaceful final plots as and when the original plots are asked to be vacated.
[7] As against this, learned advocate Mr. Deep D. Vyas appearing for the respondent-corporation submitted that the petition is premature inasmuch as the stage is of the draft town planning scheme where the respondent-corporation is in exercise of Section 48A of the Act, has undertaken the exercise of laying down the road and therefore, was within its powers act in accordance with Section 68 of the Act read with Rule 33 of the Rules. It is submitted that in this regard, order is also passed which is produced alongwith the list and which is dated 22.09.2020.
[8] Learned Assistant Government Pleader has therefore, submitted that the corporation is bound to implement the town planning scheme as and when the stage so arises and petitioners are bound to handover the vacant and peaceful possession of the final plots. However, today the requirement of the respondent corporation is only for the purpose of laying down of the road and some portion of land of the original plot is falling on the road for which the vacant and peaceful possession is required and therefore, powers are exercised under Section 48A of the Act at this stage and therefore, the insistence of the petitioners to handover the possession of final plots is premature.
[8.1] Learned AGP has submitted that after undertaking of exercise pursuant to the sanctioned draft town planning scheme, the Town Planning Scheme No.128 (Vatva-Aslali) is pending before the State Government for sanction. It is submitted that while framing preliminary town planning scheme No.128, the Town Planning Officer has followed all the provisions under the Town Planning Act.
Page 4 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022C/SCA/6140/2021 ORDER DATED: 22/03/2022 [9] The Court has heard learned advocates for the parties and perused the documents placed on record. It appears from the record that Government of Gujarat by their Panchayat Housing & Urban Development Department's Notification No: GH/ P/L10/UDA/1177/646(1) Q2 dated: 30-1-1978, bought into force the Gujarat Town Planning & Urban Development Act-1976 from 1st February 1978 repealing the Bombay Town Planning Act-1954. Under this Act, Government declared the Urban Development Area consisting of Ahmedabad Municipal Corporation's area and peripheral area under sub section-1 of section-22 of the Act. Ahmedabad Urban Development Authority had been constituted under section-22 of the said Act, by the Government's Panchayat Housing and Urban Development Department Notification No. GH/B/ 2 1/UDA/1 177/646 (3) Q2 Dated 30-1-1978.
Ahmedabad Urban Development Authority (hereinafter referred as "AUDA") had consulted the Chief Town Planner, Gujarat State, Gandhinagar under section 41(1) of the Act for preparing the Draft Town Planning Scheme No. 128 (Vatva-Aslali). Chief Town Planner, Gujarat State, Gandhinagar gave the consultation under section 4l(1) of the Act dated 28.03.2007. Thereafter, AUDA vide its resolution no. 15(2007-2008) of its 217th Board meeting, dated 24.08.2007, declared its intention to prepare the Draft Town Planning Scheme No.128(Vatava-Aslali), which was published in extra ordinary Government Gazette & part-II dated 07/09/2007 on page no. 178 to 179 and published in daily newspapers "Sandesh" and "Suryakaal" dated: 11/09/2007.
Thereafter, AUDA made due publicity in local newspapers "Gujarat Samachar" and "Times of Karnavatı" dated 17/04/2008 and held an owners meeting, as per Rule-17 of the Gujarat Town Planning & Urban Development Rules, 1979 dated 19/04/2008 to invite suggestions and objections from the land owners affected by Page 5 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022 C/SCA/6140/2021 ORDER DATED: 22/03/2022 the proposals of the draft town planning scheme. After considering the suggestions and objections received, AUDA published the Draft Town Planning Scheme No. 128(VatavaAslalı) under section 42(1) of the Act and Rules in extra ordinary Government Gazette dated 09/05/2008 and published in daily newspapers "Gujarat Samachar"
& "Aaj-kal" dated 16/05/2008.
After following all the provisions laid down in the Act and all the procedure laid down in the Rules, AUDA prepared and submitted the Draft Town Planning Scheme No. 128(Vatva-Aslali) to the State Government for its sanction under section 48(1) of the Act dated 07/08/2008. In exercise of power conferred by section 48(2) of Act, the Government sanctioned the Draft Town Planning Scheme No. 128 (Vatva-Aslalı) with some modification vide its Notification No GH/V/170 of 2010/TPS-112008-3730-L, dated 23/12/2010.
As Per Sanctioned Draft Town Planning Scheme No. 128 (Vatva-Aslali), Final Plot No. 78/1 admeasuring 789 sq. mt. allotted in lieu of Original Plot No. 78/1 admeasuring 1315 sq. mt. of land bearing Survey No./Block no. 156/1/1/3 of Village: Vatva in the ownership of Kalabhai Mangalbhai (where the deduction is 40%). Final Plot No. 78/8 admeasuring 1336 sq. mt allotted in lieu of Original Plot No. 78/8 measuring 2226 sq. mt. of land bearing Survey No./Block no.156/2/2 of Village: Vatva in the ownership of Kalabhai Mangalbhaı (where the deduction is 40°). Final Plot No. 79/1 admeasuring 2489 sq. mt allotted in lieu of Original Plot No. 79/1 admeasuring 4148 sq. mt of land bearing Survey No./Block no. 157/1 of Village: Vatva in the ownership of Kalabhai Mangalbhai and others (where the deduction is 40%). Final Plot No. 112/5 admeasuring 1184 sq. mt allotted in lieu of Original Plot No.112/5 admeasuring 1973 sq. mt. of land bearing,190/1/1 of Village: Vatva in the ownership of Kalabhai Mangalbhai (where the deduction is 40% at Taluka: Vatva, District: Ahmedabad.Page 6 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022
C/SCA/6140/2021 ORDER DATED: 22/03/2022 Under the provision of the section 50(1) of the Act, the State Government vide Notification No. GH/V/197/201 /TPV 1020092744/L, dated 03/12/2011 appointed the Town Planning Officer, Town Planning Scheme, Unit-4, Ahmedabad as a Town Planning Officer to finalize the Draft Town Planning Scheme No. 128 (Vatva-Aslali) and also published in Extraordinary Govt. Gazette Vol. IV-B page no. 406-2 to 406-4 dated: 03/12/2011 . The Town Planning Officer has entered upon his duties dated on 22/12/2011. Public Notice regarding the same was published in local newspaper "Aaj-kal" page no. 3 dated: 28/12/2011 & "Sandesh" page no. 10 dated 30/12/2011 in prescribed manner as provided under Act and procedure of Rules and published in Extraordinary Govt. Gazette Vol. LIN, Part II, page no. 9 dated 05/01/2012. Then Urban Development & Urban Housing Department by their different Notifications appointed different Town Planning Officers Under the provision of the section 50 (1) of the S Act.
Town Planning Officer undertaking the provisions prescribed in the Act and procedure of Rules and after giving sufficient opportunities by issuing individual notices to the land owners as per the revenue records, as well as public notices in the local newspapers at different stages of the Town Planning Scheme to the persons affected by the scheme. The Town Planning Officer declared the decisions of Preliminary Town Planning Scheme No. 128 (Vatva- Aslali) under section 52(1) of the Said Act dated 19/07/2019 and published in daily newspapers "Manav Mitra" page no. 3 & "Gujarat Samachar" page no. 11 dated 22/07/2019 and in Extraordinary Government Gazette, VOL. LX, Part-Il, page no. 195, dated 20/07/2019. Under section 52(1) of the Act and Town Planning Officer submitted the Preliminary Town Planning Scheme No. 128 (Vatva-Aslali) to the State Government for its sanction on dated 07/10/2019 under section 52(2) & 64 of the Act.Page 7 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022
C/SCA/6140/2021 ORDER DATED: 22/03/2022 As Per the submitted Preliminary Scheme No, 128 (Vatva- Aslali) Final Plot No. 78/1 admeasuring 789 sq. mt. allotted in lieu of Original Plot No. 78/1 admeasuring 1315 sq. mt. of land bearing Survey No./Block no. 156/1/1/3 of Village: Vatva in the ownership of Ravjibhai Kalabhai & others (where the deduction is 40%). Final Plot No. 78/8 admeasuring 1336 sq. mt allotted in lieu of Original Plot No. 78/8 measuring 2226 SQ. mt. of land bearing Survey No./Block n0.156/2/2 of Village: Vatva in the ownership of Ravjibhai Kalabhai & others (where the deduction is 40%). Final Plot No. 79/1 admeasuring 2489 sq. mt allotted in lieu of Original Plot No. 79/1 admeasuring 4148 sq. mt of land bearing Survey No./Block no. 157/1 of Village: Vatva in the ownership of Ravjibhai Kalabhai & others (where the deduction is 40%). Final Plot No. 112/5 admeasuring 1182 sq. mt allotted in lieu of Original Plot No.112/5 admeasuring 1973 sq. mt. of land bearing,190/1/1 of Village: Vatva in the ownership of Ravjibhai Kalabhai & others (where the deduction is 40%) at Taluka: Vatva, District: Ahmedabad. The Preliminary Town Planning scheme No:128 (Vatva-Aslali) is pending before state government for its sanction under section 65 of the act.
The petitioners are owner and occupier of the Final Plot No. 78/1 admeasuring 789 sq. mt. allotted in lieu of Original Plot No. 78/1 admeasuring 1315 sq. mt. of land bearing Survey No./Block no. 156/1/1/3, Final Plot No. 78/8 admeasuring 1336 sq. mt allotted in lieu of Original Plot No. 78/8 measuring 2226 sq. mt. of land bearing Survey No./Block no..156/2/2, Final Plot No. 79/1 admeasuring 2489 sq. mt allotted in lieu of Original Plot No. 79/1 admeasuring 4148 sq. mt of land bearing Survey No./Block no. 157/1 Final Plot No. 112/5 admeasuring 1182 sq. mt allotted in lieu of Original Plot No.112/5 admeasuring 1973 sq. mt. of land bearing,190/1/1 of Village: Vatva in the ownership of Ravjibhai Kalabhaı & others at Taluka: Vatva, District: Ahmedabad ın Submitted Preliminary Town Planning Scheme No. 128 (Vatva-Aslali).Page 8 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022
C/SCA/6140/2021 ORDER DATED: 22/03/2022 Appropriate authority has issued notice to petitioners to leave possession of their original plot for implementation of the TP road. The Petitioners have prayed that to implement the sanctioned Final Town Planning Scheme No 128 (Vatva-Aslali) and handover the peaceful and vacant possession of final plot Nos.78/1,78/8,79/1, 112/5 and not to take possession of their original plots until they get possession of their final plot.
[9.1] After following all the provisions prescribed in the Act and all the procedures laid down in the Rules, AUDA has prepared and submitted the draft town planning Scheme No.128 (Vatva-Aslali) under Section 48(1) of the Act dated 07.08.2008. In exercise of power conferred by Section 48(2) of the Act, the Government sanctioned the Draft Town Planning Scheme No.128 (Vatva-Aslali) with modification vide its Notification No.GH/V/170 of 2010-TPS- 112008-3730-L, dated 23.12.2010. Town Planning Officer has followed all the provisions prescribed in the Act and all the procedures laid down in the Rules and after giving sufficient opportunities by issuing individual notices to land owners, as well as public notices in the local newspapers at different stages of the Town Planning Scheme to the persons affected by the scheme, The Town Planning Officer declared the decisions of Preliminary Town Planning Scheme No. 128 (Vatva-Aslali) under section 52(1) of the Act dated 19/07/2019. Then after, Town Planning Officer submitted the Preliminary Town Planning Scheme No. 128 (Vatva-Aslali) to the State Government for its sanction dated 07/10/2019 under section 52(2) & 64 of the Act. The Preliminary Town Planning Scheme No. 128 (Vatva-Aslalı) is pending before the state government for its sanction under section 65 of the Act.
[10] The exercise of powers under Section 48A of the Act is settled position of law and even the challenge to its constitutional validity of Section 48A of the Act has also been upheld. This Court in case of Rajeshbhai Vitthalbhai Sardhara v/s. State of Gujarat, Page 9 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022 C/SCA/6140/2021 ORDER DATED: 22/03/2022 reported in 2016 JX(Guj) 425 dealing with powers under Section 48A of the Act has held as under:-
"3.3 In the said draft Town Planning Scheme No.7 (Nana Mava), petitioners' land bearing survey No.28(1)-C was given original Plot No.33/2 admeasuring 5,261 sq.meters and on the same land, Final Plot No.33/2 admeasuring 3,893.11 Sq.Meters was reconstituted and was allotted to the petitioners' pre-decessor in title.
3.6 Respondent-Corporation by its impugned letter dated 17th February,2014 reject the petitioner no.7's application for sanctioning the layout plan on the ground that since the petitioners have not handed over possession of original plot no.33/2, petitioners' layout plan of Final Plot No.33/2 cannot be sanctioned by the respondent-Corporation. Petitioners herein have never objected to handing over the possession of its original plot no.33/2, and even the respondent no.2 has never issued any notice as prescribed under the Act,1976 to the petitioners herein for handing over the possession of its original plot No.33/2."
[11] The Court has also taken into consideration the order placed on record by the respondent-corporation dated 22.09.2020 in exercise of powers under Section 48 of the Act. The order appears to have been passed in consonance with the sanctioned draft town planning scheme and mentions the requirement of plot of land for laying down of a new road including infrastructure like drainage line, water pipeline and electricity line. The part plan produced on record would indicate the part of the subject land which is located from where the town planning road is to pass and therefore, vacant and peaceful possession of such small portion of the land in public interest cannot be interfered.
[12] Insofar as the submission of learned advocate regarding handing over the possession of the final plots considering the stage as stated by the State Government that preliminary town planning scheme is pending for sanction under Section 65 of the Act, no direction is required to be given for handing over the vacant and Page 10 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022 C/SCA/6140/2021 ORDER DATED: 22/03/2022 peaceful possession of the final plots as prayed in the petition.
[13] Insofar as the relief prayed for implementation of the town planning scheme in absence of any malafides or anything on record to indicate that prejudice to be caused to the petitioners by implementing the town planning scheme, the Court has no reason to believe that the respondent-corporation would not in any manner proceed ahead with the implementation of the town planning scheme according to the provisions of law as and when the stage for such implementation is reached upon the sanction from the State Government.
[14] With the aforesaid observations, the petition stands disposed of. Direct service is permitted.
(A.Y. KOGJE, J) SIDDHARTH Page 11 of 11 Downloaded on : Sat Dec 24 13:22:46 IST 2022