Gujarat High Court
Sharadchandra Devidas Shah Through Poa ... vs State Of Gujarat on 23 February, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/14672/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14672 of 2020
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SHARADCHANDRA DEVIDAS SHAH THROUGH POA HOLDER ABHISHEK
MAHESHBHAI AGRAWAL
Versus
STATE OF GUJARAT
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Appearance:
MR JC VYAS(992) for the Petitioner(s) No. 1,2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2
NOTICE UNSERVED(8) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 23/02/2021
ORAL ORDER
1. Heard learned advocate Mr. J.C.Vyas for the petitioners through video conference.
2. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
"A. Your Lordships may be pleased to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order Communication dated 26.12.2019 (Annexure VI) issued by the Respondent No.3 publishing the Preliminary Scheme No. 63 of Khoraj insofar as it pertains change of location of the subject land of the Petitioners;
B. Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the operation and implementation of the impugned order/communication dated 26.12.2019 (Annexure VII) issued Page 1 of 6 Downloaded on : Mon Aug 23 17:15:36 IST 2021 C/SCA/14672/2020 ORDER by the Respondent No.3 publishing the Preliminary Scheme No. 63 of Khoraj;
(C) An ex parte ad interim relief in terms of prayer (B) above may kindly be granted.
(D) Such other and further reliefs as may be deemed just and proper in the circumstances of the present case, may kindly be granted"
3. Brief facts of the case are as under:
3.1 The petitioners have purchased the land bearing Revenue Survey No. 459 of Village Khoraj, Taluka and District Ahmedabad admeasuring 4351 sq.mtrs, vide Registered Sale Deed dated 23.01.2006.The petitioners are family members and joint owners of the said land.
3.2 A draft town planning scheme was prepared and submitted under section 48(1) of the Gujarat Town Planning and Urban Development Act, to the State Government on 17.04.20004 and the State Government sanctioned the said draft town planning scheme vide notification dated 06.03.2006. As per the said Draft Town Planning Scheme, the land of the petitioner was alloted Final Plot No. 20.
3.2 The Town Planning Officer was appointed and vide Notice dated 03.03.2012, the location of the plot alloted to the petitioners was proposed to be changed and to carve out the same out of Survey Nos. 507/2 and 507/3. The said change Page 2 of 6 Downloaded on : Mon Aug 23 17:15:36 IST 2021 C/SCA/14672/2020 ORDER was approved by the Chief Town Planner and AUDA and was accepted by the petitioners.
3.3 It is the case of the petitioner that the said land was alloted Final Plot No.20, the petitioners invested approx 20 lacs rupees towards levelling, fencing etc. and the petitioners are in occupation and possession of the said land till date.
3.4 The Town Planning Officer-respondent No.3, vide communication dated 09.05.2019, sought approval of respondent No.2-the Chief Town Planner to change location of the petitioners' land. As per the said proposal, the location of Final Plot No. 20 was sought to be carved out of Revenue Survey Nos. 466/13, 466/14 and 466/16. The Respondent No.2 vide communication dated 30.06.2019 informed the petitioners with respect to change of location of Final Plot No.
20. 3.5 The, Town Planning Officer-respondent No.3 thereafter issued notice dated 25.11.2019 stating that after allotment of Final Plot No.20 to the petitioners, the boundaries, measurement as well as location of the plot is required to be changed. It is the case of the petitioner that the said notice does not contain any reason or justification for proposing such change after passage of over 7 years from allotment of Final Plot. Objections to such proposal were invited from the petitioners within 3 days of receipt of the notice. The said notice was received by the petitioners on 23.12.2019.Page 3 of 6 Downloaded on : Mon Aug 23 17:15:36 IST 2021 C/SCA/14672/2020 ORDER
3.6 It is the case of the petitioners that the said notice dated 25.11.2019 was served on the petitioners on 23.12.2019. The petitioners submitted their objections to respondent No.3 on 26.12.2019 i.e. within the specified period of 3 days from receipt of notice.
3.7 It is the case of the petitioner that before the petitioners could file their objections and respondent No.3 could consider the same, the respondent No.3, published the Preliminary Scheme on 24.12.2019 and submitted the same on 26.12.2019 to respondent No.1-State Government for its approval and sanction. It is the case of the petitioner that without considering the objections raised by the petitioners, respondent No.3 issued order /communication dated 26.12.2019 pertaining to change of location of the subject land of the petitioners.
3.8 In the interregnum period, the petitioners have also made a representation dated 22.06.2020 before respondent No.1
4. Learned advocate Mr. Vyas appearing for the petitioners submitted that respondent No.3-Town Planning Officer has forwarded the Preliminary Town Planning Scheme under sub-
rule (9) of Rule 26 of the Gujarat Town Planning and Urban Development Rules, 1979 ['the Rules,1979' for short] to the State Government on 26.12.2019 and therefore, the objections raised by the petitioners were not at all considered by the Town Planning Officer. It was submitted that the notice issued Page 4 of 6 Downloaded on : Mon Aug 23 17:15:36 IST 2021 C/SCA/14672/2020 ORDER by the Town Planning Officer to the petitioners to submit objections was received on 23rd December, 2019 and within three days, the petitioners submitted the objections.
5. In view of above, without entering into merits of the matter, the petition can be disposed of by issuing following directions in the interest of justice:
(i) The petitioners shall make a representation raising all the contentions which are raised in this petition along with documents to be relied upon before the respondent No.1-State Government, as the Preliminary Town Planning Scheme No. 63 of Khoraj is pending for sanction under section 65(1) of the Gujarat Town Planning and Urban Development Act, 1976 before the State Government;
(ii) The petitioners are directed to make such application/representation within four weeks from the date of receipt of this order before the State Government;
(iii) On receipt of such representation, the competent officer of the respondent No.1-State Government shall issue a notice of personal hearing to the petitioners within four weeks from the date of receipt of such application/representation;
(iv) After giving an opportunity of personal hearing to the petitioners and after considering the submissions and documents which may be relied upon by the petitioners and the Page 5 of 6 Downloaded on : Mon Aug 23 17:15:36 IST 2021 C/SCA/14672/2020 ORDER contentions which are raised in this petition, the competent officer of the State Government shall pass a reasoned speaking order within four weeks from the date of hearing.
6. With the aforesaid directions, the petition is disposed of.
Notice is discharged.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 6 of 6 Downloaded on : Mon Aug 23 17:15:36 IST 2021