Gujarat High Court
Nipesh S/O Ganesh Premubhai Garange vs State Of Gujarat on 27 February, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.22042 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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NIPESH S/O GANESH PREMUBHAI GARANGE
Versus
STATE OF GUJARAT
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Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,5,6,7,8,9
for the Respondent(s) No. 1,2
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 27/02/2023
CAV JUDGMENT
(1) The present writ petition has been filed inter alia praying for the following reliefs:
"8(A) that the Hon'ble Court be pleased to issue a writ of or in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting Town Planning Scheme No.96/B (Saijpur-Bogha) to the extent it provides for 18 meter road abutting Final Plot Nos.200/2, 192, 178, 179;Page 1 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023
C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 (AA) that the Hon'ble Court be pleased to issue a writ of or in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the final orders dated 22.09.2022 issued by the respondent No.2;"
FACTS (2) It is the case of the petitioners that they have been residing in Chhara Nagar, Ahmedabad for a period ranging from 15 years to over 70 years. Their homes / small shops are on the road, which on the one end face Sindhi Market, which leads to Kubernagar Railway Crossings. The aforesaid road is a part of Draft Town Planning Scheme, Ahmedabad, No.96/B (Saijpur- Bogha) of Ahmedabad Municipal Corporation (AMC). On 26.05.2022, the Assistant Estate Officer / Assistant TDO, North Zone, issued notices to the petitioners. For the purposes of the present petition, the legal representatives of the deceased persons, who reside in the corresponding addresses referenced in the notices, have joined as the petitioners being petitioner Nos.1, 2, 3, 4, 9, 12, 17, 21, 25, 28 and 40. The petitioners gave a response in writing immediately on around 27.05.2022. A hearing took place on 07.06.2022 at the Office of the Municipal Corporation. The AMC vide order dated Page 2 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 22.09.2022 passed a final order calling upon the petitioners to handover the possession of the land.
(3) The premises of the petitioners are situated on a proposed 18 meter T.P. Road. The road, which exists today is approximately of 9 meters in width. The length of the road is approximately 400 meters. The road on its East is adjacent to Kubernagar Railway Crossings and on its West, it is slated to merge with a proposed 18 meter road at a T-Junction. It is the case of the petitioners that they had no intimation about the proposed widening of road till May, 2022, when notices were served on the petitioners. It is stated that the petitioners have not been able to come across any notices, which could have been published, while making the draft scheme and hence, they are deprived of an effective opportunity of filing objections to the draft scheme and the draft scheme is sanctioned without considering obvious objections.
SUBMISSIONS:
(4) Learned Advocate Ms.Megha Jani appearing for the petitioners has submitted that the final orders dated 22.09.2022 passed by respondent Page 3 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 No.2 are unreasonable, arbitrary and without application of mind. It is submitted that the Town Planning Scheme No.96/B (Saijpur-Bogha) is illegal and is violative of provisions of Constitution and principles of natural justice and is required to be quashed and set aside to the extent of 18 meter road, which abuts the proposed Final Plot Nos.200/2, 192, 178 and
179.
(5) It is submitted that the scheme of the Gujarat Town Planning and Urban Development Act, 1976 (for short 'the Act'), more particularly Sections 42 and 27 thereof contemplate consideration of objections to the draft Scheme before it is submitted to the State Government for sanction. The petitioners have not come across any notice publishing draft scheme. It is submitted that the stages before sanction of the scheme are completed in a manner that it renders the objective of giving hearing to the affected persons and the entire provision of Section 47 of the Act, which mandatorily requires consideration of the objections to the draft scheme otiose. While referring to the provisions of section 40(3)(e) read with section 48A of the Act, learned Advocate Ms.Jani has submitted that the land or the road, which is sought to be Page 4 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 widened is not vested in the State Government and hence, the provisions of Sections 68 and 69 of the Act cannot be invoked and hence, the petitioners cannot be ordered to be evicted from their properties. It is submitted that if the road is widened, it would render the petitioners without residence and occupation, pushing them further into the margins of society, resulting in violation of Articles 19(1)(g) and 21 of the Constitution of India.
(6) It is contended by learned Advocate Ms.Jani that the first half of the said road starting from East, is situated where the boundary of T.P. Scheme No.96/B ends. The map and sketches established that insofar as the said patch is concerned, the deduction for the purpose of widening of the road is made in such a way that almost 80% of the additional land required for making the road wider to 18 meters is from Chhara Nagar. It is submitted that there is hardly any deduction from other side of the road, i.e. the side that faces the premises of the petitioners, hence it is submitted that the Town Planning Scheme in this manner is ex-facie unreasonable, arbitrary and discriminatory.
Page 5 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 (7) A fortiori learned advocate Mr.Chhaya appearing for the respondent-Corporation has submitted that as per the record, the land in question and the surrounding lands were covered within the net of Town Planning Scheme No.96-B (Saijpur-Bogha) (for short 'the TP Scheme in question'). The consultation with the Chief Town Planner took place under Section 41(1) of the Act on 07.04.2015 and thereafter the intention to declare the Draft T.P. Scheme in question was declared under Section 41 of the Act on 29.04.2015. The owners' meeting as contemplated under Rule 17 of the Gujarat Town Planning and Urban Development Rules, 1979 (for short "the Rules") ultimately, was convened on 09.06.2015 and the draft T.P. Scheme was prepared by the competent authority, after scrupulously following the procedure of law read with the Rules and the same was submitted to the State Government under Section 48(1) of the Act on 19.10.2015. Ultimately, the draft T.P. Scheme in question got it sanctioned from the State Government in view of Notification dated 03.11.2016 under Section 48(2) of Act.
(8) It is submitted that as per the provisions contained under Section 48A of the Act, the Page 6 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 respondent-Corporation is empowered to implement the T.P. Road as if the T.P. road, as envisaged under the Draft T.P. Scheme is considered as preliminary T.P. Scheme. It is submitted that a conjoint reading of Sections 48A and 40 (c), (f), (g) and (h) of sub- section 3 of the Section 40 read with Section 68 of the Act make it very clear that the respondent-Corporation is empowered to execute and/or implement the T.P. road even at the stage of sanctioned draft TP Scheme. It is submitted that as per Section 67 of the Act, the land in question is vested absolutely in the appropriate authority free from all encumbrances in view of provisions contained in Section 48A of the Act.
(9) Learned advocate Mr.Chhaya has submitted that as per the provisions contained under Section 48A of the Act, once the Draft T.P. Scheme is sanctioned under Section 48(2) of the Act, all lands acquired by the appropriate authority for the purposes specified under clauses (c),
(f), (g) and (h) of sub-section 3 of Section 40 of the Act shall vest absolutely in the appropriate authority free from all encumbrances. It is submitted that Section 48A of the Act further envisages that provisions Page 7 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 of Sections 68 and 69 of the Act shall apply mutatis mutandis. Thus, it is contended that the conjoint reading of Sections 40(3), 68A, 67 and 68 of the Act would make it clear that portion, which is forming part of proposed 18 meter T.P. Road is absolutely vested in the respondent-Corporation and the respondent- Corporation is empowered to implement Draft Town Planning Scheme for the purposes mentioned under clauses (c), (f), (g) and (h) of sub-section (3) of Section 40 of the Act, as if for those purposes, preliminary T.P. Scheme is sanctioned. The purpose of laying down T.P. road is included under Clause (c) of Section 40(3) of the Act. In support of his submission, he has placed reliance on the order dated 18.07.2018 passed in Special Civil Application No.15298 of 2017. Reliance is also placed on the Division Bench judgment dated 09.04.2018 passed in Letters Patent Appeal No.401 of 2018.
(10) Learned advocate Mr.Chhaya has submitted that it would become clear that the impugned notices issued by the respondent-Corporation under Section 68 of the Act read with Rule 33 of the Rules read with Section 48A of the Act are just and proper. It is submitted that Page 8 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 after issuance of the impugned notices and after following due procedure of law, the final order dated 22.09.2022 is passed which is just and proper. It is submitted that the Draft Scheme got sanctioned way back in November, 2016. It is submitted that in case the residential construction of the petitioners is falling within the criteria as per the prevailing policy of the respondent- Corporation, they will be provided an alternative accommodation, as per the prevailing policy of the respondent- Corporation, if the case of the concerned owner and occupier, falls within the criteria of the said policy.
CONCLUSION:
(11) The petitioners have approached this Court seeking a direction for quashing and setting aside the Town Planning Scheme No.96/B (Saijpur-Bogha) to the extent, which provides for 18 meter road, abutting Final Plot Nos.200/2, 192, 178 and 179. By way of the amended prayers, the petitioners have also sought for quashing and setting aside the order dated 22.09.2022.Page 9 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023
C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 (12) The facts, which are not in dispute and are established from the pleadings, are that the land in question and the surrounding lands were covered within the Town Planning Scheme No.96/B (Saijpur-Bogha) and the intention to declare the draft T.P. Scheme under the provisions of Section 41 of the Act was declared on 29.04.2015, after consulting the Chief Town Planner under Section 41(1) of the Act. Accordingly, a public notice was published in the newspaper on 12.05.2015.
(13) After issuance of the aforesaid public notice another public notice was published on 04.06.2015 in various newspapers intimating the owners' meeting. Accordingly, the owners' meeting and framing of tentative proposal was undertaken under Rule 17 of the Rules on 09.06.2015. After the owners' meeting was held, again a public notice was published on 22.07.2015 by the respondent-Corporation for public and it was specifically mentioned in the public notice that anyone who is affected by the T.P Scheme may register his objection within a period of one month. Ultimately, a Draft T.P. Scheme was prepared by the competent authority and the same was submitted to the State Government under Section 48(1) of Page 10 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 the Act on 19.10.2015. The State Government vide notification dated 03.11.2016 issued under Section 48(2) of the Act sanctioned the Draft T.P. Scheme. Thus, the petitioners cannot allege that no opportunity of hearing is given to them before sanctioning of the Draft T.P.Scheme. The respondent authority has given ample opportunities to raise their objections to the scheme as per the provision of the statute. It is well settled proposition of law that once a public notice is issued, then there is no need to give individual notice. Hence, the contention, with regard to the violation of principles of natural justice raised by the petitioners, does not merit acceptance.
(14) The grievance raised by the present petitioners is with regard to the Town Planning road, which is envisaged in the Draft T.P. Scheme. The petitioners have alleged that the respondents have arbitrarily and discriminatorily have not implemented or provided the concerned road by appropriately deducting the land from their sides and not from the Northern side of the boundary of the T.P. Scheme. It was contended that the provisions of Section 40(3) of the Act and Page 11 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 Clause (e), which pertains to the allotment of land of roads, cannot be vested under the provisions of Section 48A of the Act and only the land required by the appropriate authority specified in Clauses (c), (f), (g) and (h) of sub-section(3) of Section 40 of the Act shall vest absolutely in the appropriate authority free from encumbrances and hence, it cannot be said that the provisions of Sections 68 and 69 of the Act shall mutatis mutandis apply to the sanctioned Draft T.P. Scheme and it would be part of the preliminary scheme.
(15) The relevant provisions, for deciding the lis are Section 40 sub-section (3), Clause (c) and Clause (e), Section 48A, Section 68 and Section 69(1)(a)(b) of the Act. The same are as under:
"SECTION 40 : Making and contents of a town planning scheme (3) A town planning scheme may make provision for any of the following matters, namely:-
(a) the laying out or relaying out of land, either vacant or already built upon;
(b) the filling up or reclamation of low-laying, swampy or unhealthy areas, or levelling up of land;
(c) lay-out of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications;
(d) the construction, alteration and removal of buildings, bridges and other structures;Page 12 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023
C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023
(e) the allotment or 42 "earmarked" of land for roads, open spaces, gardens, recreation grounds, schools, markets, green belts, dairies, transport facilities, public purposes of all kinds;
(f) drainage, inclusive of sewerage, surface or sub- soil drainage and sewage disposal;
(g) lighting;
(h) Water supply;
(i) the preservation of objects of historical or national interest or natural beauty, and of buildings actually used for religious purposes;
(j) the reservation of land to the extent of ten per cent; or such percentage as near thereto as possible of the total area covered under the scheme,. for the purpose of providing housing accommodation to the members of beauty, and of buildings actually used for religious purposes; 43 "and of such other class of people as may be determined by the State Government"
SECTION 48A : Vesting of land in appropriate authority (1) Where a draft scheme has been sanctioned by the State Government under sub-sec. (2) of Sec. 48; (hereinafter in this section, referred to as the sanctioned draft scheme), all lands required by the appropriate authority for the purposes specified in clause (c), (f), (g) or (h) of sub-sec. (3) of Sec. 40 shall vest absolutely in the appropriate authority free from all encumbrances. (2) Nothing in sub-sec. (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.
(3) The provisions of Sees. 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if,-
(i) sanctioned draft scheme were a preliminary scheme, and
(ii) in sub-sec. (1), for the words "comes into force", the words, brackets and figures "the date on which the draft scheme is sanctioned under sub-sec. (2) of Sec. 48" were substituted.Page 13 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023
C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 SECTION 68 : Power of appropriate authority to evict summarily .-On and after the date on which a preliminary scheme comes into force, any person continuing to occupy and land which he is not entitled to occupy under the preliminary scheme shall, in accordance with the prescribed procedure, be summarily evicted by the appropriate authority.
SECTION 69 : Power to enforce scheme (1) On and after the date on which the preliminary scheme comes into force, the appropriate authority shall, after giving the prescribed notice and in accordance with the provisions of the scheme.
(a) remove, pull down, or alter any building or other work in the area included in the scheme which is such as contravenes the scheme or in the erection or carrying out of which any provision of the scheme has not been complied with;
(b) execute any work which it is the duty at any person to execute under the scheme in any case where it appears to the appropriate authority that delay in the execution of the work would prejudice the efficient operation of the scheme."
(16) The petitioners are asserting their case on the provision of Clause(e) of sub-section (3) of Section 40 of the Act, by contending that under the provision of Section 48(A), the land, which falls under the said clause does not get vested in the State Government, hence the provision of Sections 68 and 69 of the Act will not get attracted, hence, they cannot be ordered to be summarily evicted. In my considered opinion, the petitioners have misdirected themselves in taking shelter under Clause(e) of sub-section (3) of Section 40 of the Act and, in fact they will be governed by Page 14 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 Clause (c) instead of Clause(e). Clause (c) of sub-section (3) to Section 40 of the Act specifically stipulates of making provision for laying-out of new streets or roads, construction,diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications, whereas Clause (e) to sub-section (3) of Section 40 pertains to the allotment or (earmarked) of land for roads, open spaces, grounds, recreation grounds, school etc. Thus, the language of Clause(c) and Clause(e) is different and operates in separate field. Clause(c) refers to the existing roads which are to be extended, altered or improved, whereas Clause (e) uses the expression "allotment of land for roads". Both the expressions used in the respective clauses are distinct. In the present case, the road is already in existence and the respondent authority intends to extend/alter it and hence, indubitably, the same will fall under Clause (c) to sub-section (3) to Section 40 of the Act. Thus, the reliance placed by the petitioners on Section 40(3)(e) of the Act is misconceived.
Page 15 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 (17) Section 48A of the Act provides that where a private scheme has been sanctioned by the State Government under sub-section (2) of Section 48 of the Act all lands required by the appropriate authority for the purposes specified in clauses (c), (f), (g), or (h) of sub-section (3) of Section 40 of the Act shall vest absolutely in the appropriate authority free from all encumbrances. Sub-section (3) of Section 48A of the Act stipulates that the provisions of Sections 68 and 69 of the Act shall mutatis mutandis apply to the 'sanctioned draft scheme', as if sanctioned draft scheme were a 'preliminary scheme'. The provision of clause (i) to sub-section (3) to Section 48 of the Act attracts the provisions of Sections 68 and 69 of the Act and the same will apply to the 'sanctioned draft scheme' as if it is a 'preliminary scheme.' The consequential effect would be that once the provisions of Sections 68 and 69 of the Act are triggered, the power of appropriate authority to evict summarily any of the occupiers, who continue to occupy any land, can be ordered by the authorities. Section 69 of the Act provides power to enforce scheme, which also prescribes the action of removing, pulling or alter any building or other work in Page 16 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 the area under the scheme. Thus, if all the provisions of the sections mentioned hereinabove are harmoniously read, the same will explicate that the lay-out of new streets or roads, construction, diversion, extension, alteration, improvement etc., as provided in Section 40(3)(c) of the Act are to be read into the provision of Section 48A of the Act such road/street gets vested absolutely with the appropriate authority, which ultimately results in the invocation of provisions of Sections 68 and 69 of the Act by treating the sanctioned 'draft scheme' as a 'preliminary scheme'.
(18) Thus, the petitioners cannot resist the implementation of the construction or extension, alteration of the road, which is passing through Chhara Nagar as per the Town Planning Scheme No.96/B. (19) I may with profit refer to the observations made by the Division Bench in the order dated 09.04.2018 passed in Letters Patent Appeal No.401 of 2018, while examining the aforesaid provision, has held thus:-
Page 17 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 "14. In view of the above, the contention of the learned advocate for the petitioners that at the stage of draft scheme, notice for eviction cannot be issued to the petitioners is misconceived. It is further required to be noted that respondent Corporation has followed the principles of natural justice and reasonable opportunity of being heard is given to the petitioners. Thus, there is a substantial compliance of the provisions of the Act and the Rules."
(20) In the order dated 18.07.2018 passed in Special Civil Application No.15298 of 2017, the Coordinate Bench of this Court, while examining the similar provisions, has held thus:-
"11. In view of the above, there remains no shadow of doubt that where the draft scheme has been sanctioned by the Government, the lands required for the purposes specified in the clauses (c), (f), (g) or (h) of Section 40(3) would automatically vest in the appropriate authority as per Section 48(A) and that the person, who is not entitled to occupy the land under the sanctioned draft scheme can be summarily evicted under section 48-A(3) of the said Act, on the analogy of the provisions contained in section 68 of the Act read with Rule 33 of the Rules. When the Statutory vesting takes place as contemplated in Section 48-A(1) of the said Act, the petitioners could not insist that they should be simultaneously handed over possession of the final plots proposed to be allotted to them under the Draft Scheme, before they are evicted from the subject lands. The purposes mentioned in Clauses (c), (f), (g) and (h) of Section 40(3) are the public utility services, and therefore the statutory vesting under Section 48A(1) of the lands earmarked for such purposes is automatic. It is axiomatic that salus populi suprema lex that regard be had to be public welfare, is the highest law. The respondent Page 18 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 authorities have sought to exercise their powers under section 48-A(3) read with section 68 and Rule 33 after following due process of law and after giving reasonable opportunity of hearing to the all concerned including the petitioners. Hence, it could not be said that the respondent no.2- Corporation has acted arbitrarily or without any authority of law while issuing impugned notices and issuing passing the impugned orders."
(21) The Coordinate Bench of this Court in the case of Sukeshi Vijaybhai Bhatt vs. State of Gujarat, AIR 2021 CC 2741, after survey of various decisions of Apex Court and this Court, has held thus:
"30 It also emerges from the record that the State Government sanctioned the varied Draft TP scheme by notification dated 31.3.1975 published in the gazette on
10.4.1975. Thus the varied Draft TP Scheme was sanctioned prior to coming into force of the Act, 1976. In such circumstances, the contention raised on behalf of the petitioners that there is a deduction of more than 50% of the land is not tenable, as such land was reserved for public purpose for post and telegraph department and slum clearance housing at the relevant time. It is well settled legal position and it is a trite law with regard to the legality and effect of sanctioned Town Planning Scheme under the Bombay Town Planning Act as well as Gujarat Town Planning Act and this Court as well as Supreme Court has time and again held that once the Draft Scheme is sanctioned by the State Government it partakes the character of statute. Following decisions of this Court as well as Supreme Court are referred to for such settled legal position :
1) This Court in case of Kanjibhai Dahyabhai Malsattar v. State of Gujarat (supra) held that TP Scheme would become final under section 65 read with section 67 of the Act, 1976 and once the Scheme has become final, all the lands would vest in Area Development Authority free from all Page 19 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 encumbrances and as such, the petitioners are required to vacate the land.
2) In case of Babulal Badriprasad Varma v. Surat Municipal Corporation (supra), the Apex Court held that, in facts of the said case, the appellant through his conduct has waived his right to equitable remedy as it would operate as estoppel against him with respect to asserting a right over a portion of the acquired land in a situation where the Scheme in question has attained finality as a result of the appellant's inaction.
3) This Court in case of Jiviben Hansrajbhai Patel Wd/o Hansrajbhai Devjibhai Patel v. State of Gujarat through Secretary (supra) held that once Final Plot is reserved for public purpose, the contention of the petitioner in the said case for allotment of lesser area of Final Plot was rejected on the ground that the Scheme has attained finality and the matter to be considered only with respect to enforcement of the Scheme.
4) In case of Satyadev Parasnath Pandey v. State of Gujarat (supra), this Court held that provisions of section 48A of the Act, 1976 clinches the issue that the land in question would vest in the authority after the draft scheme has been approved by the State Government. It was held that doctrine of proportionality requires that the balance has to be stuck between the individual claim and the right of the society and accordingly when the land is reserved for public purpose, the petitioner cannot claim any compensation from the respondent authority.
5) In case of Ramanbhai Hargovinddas Limbachia v.
State of Gujarat (supra), it was held by this Court that the petitioners have no locus to raise the objection to purchase the land after sanctioning of the Town Planning Scheme. Admittedly, in facts of the case, father of the petitioners purchased the land after the sanctioning of the Town Planning Scheme in the year 1975."
(22) It is no more res integra that once the draft T.P Scheme has become part of the Act, the same cannot be questioned, since it partakes the character of statute. Thus, the Page 20 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023 C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 petitioners cannot in any manner stall implementation of the draft scheme, which finds the operation of forming part of the T.P. road in view of the aforesaid provision of law since it is axiomatic that salus populi suprema lex i.e the public welfare is the highest law. The respondents are well within their right and power to order the evocation once it is found that the properties of the petitioners will trammel the implementation of the T.P.Scheme. The writ petition fails legal scrutiny and hence, the same is dismissed. However, as per the statement made in the affidavit-in-reply, more particularly in paragraph no.6, the respondent-Corporation shall provide an alternative accommodation as per the prevailing policy if the case of the concerned owners and occupiers including the petitioners falls within the criteria of such policy. Rule discharged. No orders as to costs.
Sd/- .
(A. S. SUPEHIA, J)
FURTHER ORDER
After the judgment is pronounced, learned
advocate Mr.Jani requests for granting status-quo for a period of 02 (two) weeks.
Page 21 of 22 Downloaded on : Wed Mar 01 20:38:47 IST 2023C/SCA/22042/2022 CAV JUDGMENT DATED: 27/02/2023 The request is refused in view of the aforesaid observations.
Sd/- .
(A. S. SUPEHIA, J)
***
Bhavesh-[PPS]*
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