Gujarat High Court
Narshibhai vs State on 13 June, 2011
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
Print
SCA/1413/2011 32/ 32 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1413 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
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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 of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
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NARSHIBHAI
RAGHAVBHAI SAVANI & 36 - Petitioner(s)
Versus
STATE
OF GUJARAT - THROUGH OFFICER ON SPECIAL DUTY & 2 - Respondent(s)
=========================================
Appearance :
M/S
THAKKAR ASSOC. for
Petitioner(s) : 1 - 37.
MR. PRANAV DAVE, AGP for Respondent(s) :
1,
NOTICE SERVED for Respondent(s) : 1 - 3.
MR. PRASHANT DESAI,
LD. SR. ADV WITH MR KAUSHAL D PANDYA for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 13/06/2011
CAV
JUDGMENT
1.0. Leave to amend as prayed for is granted.
2.0. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and order to quash and set aside the impugned notification dated 01.07.2010 issued by respondent no.1, by which in exercise of the power under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (herein after referred to as "the Act") the State Government has refused to sanction the Preliminary Town Planning Scheme No.33(Dumbhal) Surat and has directed the Town Planning Officer to draw the preliminary scheme afresh considering the (A) The observation of the inquiry report annexed herewith and (B) Representation received by the Government, as per the provision of the Act and thereafter submit the same to the State Government.
2.1. It is also further prayed for an appropriate writ, direction and order directing the respondents to sanction the preliminary scheme submitted by the Town Planning Officer being Preliminary Town Planning Scheme No.33 (Dumbhal), Surat Municipal Corporation.
3.0. The facts leading to the present petition in nutshell are as under:
3.1. The petitioners claim to be the persons who were occupying the land bearing Survey Nos. 5 and 6 situated at Dumbhal, Tal: Choryasi, Dist.
Surat. That the respondent corporation / appropriate authority proposed Draft Town Planning Scheme No.33 under the provisions of the Act and the aforesaid land in question came to be included in the Draft Town Planning Scheme No.33. It appears that the dispute is with respect to land bearing Survey No.6. That under the Draft Town Planning Scheme No.33, the land bearing Survey No.6 was given Final Plot No.6A and 6B. That large area of the aforesaid land came to be reserved for Community Centre, which has been described as R-3 and Public Utility Centre which has been described as R-4. It is the case of the petitioners that as the respondent Corporation started construction in the reserved area described as R-3 and R -4 without even awaiting decision of Town Planning Officer, finalization of scheme and vesting of the property with the Corporation, some of the predecessors of the petitioners filed Special Civil Application No.13681 of 2005 and other allied matters before this Court for quashing and setting aside the Draft Town Planning Scheme No.33(Dumbhal) Surat. Thus, the predecessor in title challenged the Draft Town Planning Scheme in which the aforesaid land was put under reservation for the Community Centre and Public Utility Centre. That this Court disposed of the aforesaid Special Civil Application by observing that it will be open for the respective petitioners to submit objection before the State Government before whom the Draft Town Planning Scheme was pending for sanction. It appears that, thereafter some of the predecessors of the petitioners preferred Special Civil Application No.16709 of 2007 before this Court and sought direction to finalize the Town Planning Scheme after considering the objection of the petitioners. That by order dated 1.9.2008 learned Single Judge disposed of the said Special Civil Application No.16079 of 2007 recording the statement on behalf of the Town Planning Officer that the Preliminary Scheme will be submitted to the State Government and this Court disposed of the aforesaid Special Civil Application by observing that once the Preliminary Scheme is presented before the Government, the Government has to proceed further in terms of provisions contained in the Act and in particular Section 65 thereof. It appears that, thereafter the Town Planning Officer prepared the Preliminary Town Planning Scheme and submitted the same to the State Government for its sanction under Section 65 of the Act and while submitting the proposed Preliminary Town Planning Scheme, the Town Planning Officer proposed to allot to the petitioners Final Plot No.10 and 11 in lieu of their original lands bearing Survey Nos. 5 and 6 paiki. It appears that thereafter, the said Preliminary Town Planning Scheme submitted by the Town Planning Officer came to be considered by the State Government. It appears that there were number of complaints and objections against the Preliminary Town Planning Scheme submitted by the Town Planning Officer i.e. with respect to entire Preliminary Town Planning Scheme and after receiving the complaints and the objections against the Preliminary Town Planning Scheme, the State Government decided to inquire into the allegations made against the Town Planning Officer as well as the Preliminary Town Planning Scheme No.33 and one Shri V.D. Vaghela, Senior Town Planner, Saurashtra Department, Rajkot inquired into the complaint/objections as per the direction given by the State Government and after considering the inquiry report and considering the objections received by the Corporation as well as others against the proposed Preliminary Town Planning Scheme , the State Government found large scale of illegalities committed by the Town Planning Officer while preparing the Preliminary Town Planning Scheme and therefore, the State Government by impugned communication and in exercise of powers under Section 65 of the Act has refused to sanction the Preliminary Town Planning No.33(Dumbhal) Surat and has directed the Town Planning Officer to draw Preliminary Town Planning Scheme afresh considering the observations made in the inquiry report as well as representations received by the State Government, as per the provision of the Act. Being aggrieved and dissatisfied with the aforesaid notification and refusing to give sanction to the Preliminary Town Planning Scheme No.33(Dumbhal) Surat and directing the Town Planning Officer to draw the Preliminary Town Planning Scheme afresh considering the observations made in the schedule, the petitioners have preferred the present Special Civil Application under article 226 of the Constitution of India.
4.0. Shri Pahwa, learned advocate for the petitioners has vehemently submitted that impugned notification dated 1.07.2010 refusing to sanction the Preliminary Town Planning Scheme No.33(Dumbhal) Surat by the State Government in exercise of powers under Section 65 of the Act is absolutely illegal, most arbitrary and against the principles of natural justice.
4.1. Shri Pahwa, learned advocate for the petitioners has submitted that before issuing the aforesaid impugned notification and refusing to sanction the Preliminary Town Planning Scheme No.33(Dumbhal) Surat while considering the inquiry report, no opportunity of hearing has been given to the petitioners . It is submitted that once under the Preliminary Town Planning Scheme which was prepared by the Town Planning Officer, Final Plot Nos. 10 and 11 were proposed to be allotted in lieu of their original holding, rights are crystallized in favour of the petitioners and therefore, before taking away such rights the petitioners were required to be heard. It is submitted that even the inquiry report was not given to the petitioners in which some observations are also made against the petitioners. It is submitted that thereafter the petitioners have got inquiry report. It is, therefore submitted that the impugned notification and the action of the State Government in refusing to sanction Preliminary Town Planning Scheme No.33(Dumbhal) Surat is absolutely illegal and against the principles of natural justice, which deserves to be quashed and set aside.
4.3. Shri Pahwa, learned advocate for the petitioners has alternatively submitted that assuming that the State Government has jurisdiction and / or authority to refuse to sanction the Preliminary Town Planning Scheme in exercise of powers under Section 65 of the Act in that case, in that case also the State Government has no jurisdiction and/ or authority to direct the Town Planning Authority to prepare the Preliminary Town Planning Scheme in particular manner as directed and / or mentioned in the impugned notification. It is submitted that as per the provisions of Section 65 of the Act, the State Government may either sanction the scheme with or without modification or refuse to sanction the scheme. It is submitted that the State Government is empowered to modify the scheme only in the circumstances mentioned in the provisions. It is submitted that as such there is no provision to give any direction in case of refusal. It is submitted that accordingly, once refusal is made, the State Government will have no further powers to give any directions to the Town Planning Officer the State Government in fact becomes functus officio upon taking the decision under Section 65 of the Act.
4.4. It is submitted that in case of refusal to sanction the scheme, the scheme of the Act provides for a complete mechanism which would start to operate. It is submitted that different authorities are conferred with statutory and/ or quasi judicial functions in the process of preparing and finalizing the scheme. It is submitted in case of refusal to sanction the Preliminary Scheme entire procedure is required to be followed and/ or is required to be undertaken afresh right from the stage of Section 40 of the Act.
4.5. It is submitted that virtue of the provision of Section 49 (1)(g) of the Act, all restrictions imposed by virtue of provision of Sec. 49 (1)
(a) of the Act will cease to operate on refusal of sanction by the State Government to the Preliminary Scheme. It is submitted that the restrictions u/s. 49 (1) (a) of the Act are at the stage of publication of draft scheme. It is submitted that, therefore, the impugned directions would run contrary to the Section 49(1) of the Act since the impugned directions assume that on refusal to sanction the scheme, fresh proceedings are required to be undertaken from the stage of Section 52 of the Act.
4.6. It is further submitted that on reading the provision contained in Section 49 (1) (g) of the Act r/w. Section 65 of the Act, upon refusal to sanction the Preliminary Town Planning Scheme, the appropriate authority is required to undertake fresh exercise of making a Town Planning Scheme from the stage of Sec. 40 of the Act. Therefore, it is submitted that on refusal to sanction a Preliminary Scheme by the State Government, no Preliminary Scheme or a Draft Scheme would be deemed to be in existence and the land owner will be at liberty to use his original parcel of land without any restrictions.
4.7. It is further submitted that the Town Planning Officer is appointed by the State Government under Section 50 of the Act for the purpose of a particular sanctioned draft scheme. It is submitted that in view of refusal to sanction the preliminary scheme, the Draft Town Planning Scheme will also not survive. It is submitted that as there is no scheme in existence, there can not be any Town Planning Officer who could be issued the impugned directions.
4.8. It is further submitted that even otherwise the impugned direction issued in the notification dated 1.07.2010 directing the Town Planning Officer to prepare the Town Planning Scheme afresh considering (A) The observation in the inquiry report annexed therewith and (B) Representations received by the Government, would tantamount to interjecting the statutory process contemplated between the provisions contained in Sections 40 and 50 of the Act. It is submitted that the scheme of the Act does not permit any bypassing of the mandatory process as contemplated between these two provisions of the Act.
4.9. It is submitted that assuming and without admitting that the directions could be issued by the State Government, the State Government is not competent under Sec. 65 of the Act to direct the Town Planning Officer who is otherwise exercising quasi judicial powers, to draw fresh preliminary scheme in a particular manner or mode. It is submitted that Town Planning Officer exercises the quasi judicial powers by virtue of the provisions of Secs. 52 and 53 of the Act r/w. Rule 26 of the Rules. It is submitted that the decision of the Town Planning Officer as contained in Section 52 (1) (ii) (iii) of the Act are final by virtue of the provision of Sec. 53 of the Act. It is submitted that the Town Planning Officer as such is an independent authority exercising quasi judicial function and is not in that sense an officer subordinate to the State Government. Therefore, it is submitted that the State Government is not competent to issue any directions as if it has supervisory powers over the officer concerned.
4.10. By making above submissions, it is requested to allow the present Special Civil Application and grant the relief as prayed for.
5.0.
Petition is opposed by Shri Prashant Desai, learned Senior Advocate appearing with Shri Kaushal Pandya, learned advocate for the respondent Surat Municipal Corporation as well as Shri Pranav Dave, learned AGP appearing on behalf of the State Government. It is submitted by learned counsel for the respondents that the impugned notification issued by the State Government refusing to sanction the proposed Preliminary Town Planning Scheme No.33 (Dumbhal) Surat is absolutely in accordance with law and considering Section 65 of the Act. It is submitted that after Preliminary Town Planning Scheme was received from the Town Planning Officer number of objections/complaints were received by the State Government against the Preliminary Town Planning Scheme inclusive of objections from the Corporation in which allegations were made against the Town Planning Officer that he has prepared the Preliminary Town Planning Scheme illegally and even contrary to the Draft Town Planning Scheme which was sanctioned by the State Government and thereafter after holding necessary inquiry and having found that the Preliminary Town Planning Scheme suggested by the Town Planning Officer is absolutely illegal, the State Government has rightly refused to sanction the said scheme in exercise of powers conferred under Section 65 of the Act. It is submitted that now fresh Preliminary Town Planning Scheme shall be prepared by the Town Planning Officer and at that stage the petitioners and all other persons shall be given an ample opportunity to make their suggestions and objections as required under the provisions of the Act and Rules, which are required to be sent to the State Government along with such Preliminary Town Planning Scheme.
5.1. It is further submitted on behalf of the respondents that under Section 65 of the Act, the State Government has power to sanction or refuse to sanction the scheme. It is submitted that in the present case after considering the inquiry report made by one Shri V.D. Vaghela, Senior Town Planner, Saurashtra Department, Rajkot, as per the direction given by the State Government in view of the objections received by the Corporation and after obtaining the opinion from the Chief Town Planner of State of Gujarat, the State Government has rightly exercised the powers of refusing to sanction the Preliminary Town Planning Scheme and has rightly remitted back the same to the Town Planning Officer for preparing the same a fresh at the stage of draft scheme, as per the impugned notification.
5.2. It is further submitted that the State Government is empowered to give directions while refusing to sanction the scheme and remitting back the same to the Town Planning Officer for preparing the afresh Preliminary Town Planning Scheme in light of the observation made in the inquiry report as well as objections received by the State Government. It is submitted that as such the State Government has not given any direction to the Town Planning Officer to prepare the scheme in a particular manner and / or mode however, has indicated that Town Planning Officer should consider observations made of the inquiry report and the representations received by the State Government. Therefore, it is submitted that no illegality has been committed by the State Government.
5.3. Now, so far as the reliance placed upon Section 49(1)(g) of the Act by the learned advocate for the petitioners is concerned, it is submitted that the said provisions would not be relevant at all. It is submitted that Section 49(1)(g) merely states that the restrictions imposed by the section shall cease to operate in the event of the State Government refusing to sanction the draft scheme or the Preliminary Town Planning Scheme or in the event of the withdrawal of the scheme under Section 66 or in the event of the declaration of intention lapsing under sub-section (3) of Section 42. It is submitted that on refusing to sanction the Preliminary Town Planning Scheme, the draft scheme which is sanctioned by the State Government will never go. It is submitted that as such Draft Town Planning Scheme has been sanctioned in the year 2000 and what is refused by the State Government vide impugned notification is the Preliminary Town Planning Scheme submitted by the Town Planning Officer. Therefore, it is submitted that on refusing to sanction the Preliminary Town Planning Scheme, the Draft Town Planning Scheme shall be continued to operate and the Town Planning Officer is required to prepare the fresh Town Planning Scheme from the stage of Draft Town Planning scheme. It is submitted that the allegation was against the Town Planning Officer who has prepared the Preliminary Town Planning Scheme that the same was not according to the Draft Scheme as per the provision of Clause 11 of Sub-Section (3) of Section 52 of the Act. It is submitted that as such the Town Planning Officer was required to draw and prepare the Preliminary Town Planning Scheme in the prescribed form and the same shall be in accordance with Draft Scheme. It is submitted that in the present case, the preliminary scheme was not drawn as per the draft scheme and therefore, State Government has rightly refused to sanction the said Preliminary Town Planning Scheme and sent the same to the Town Planning Officer to again prepare the Preliminary Town Planning Scheme afresh as per the draft scheme, as provided in clause (xi) of sub-section (3) of Section 52.
5.4. It is further submitted by Shri Desai, learned Senior Advocate for the Corporation as well as Shri Dave, learned AGP that under the scheme of the Act, before the Preliminary Scheme is prepared and / or drawn by the Town Planning Officer and it is sent to the State Government for its sanction under Section 65 of the Act, ample opportunity will be given to the petitioners and others to make representation / objection and suggestions and the same are required to be dealt with and considered by the Town Planning Officer while preparing the fresh Preliminary Town Planning Scheme and the Town Planning Officer is required to take its own decision while preparing the Preliminary Town Planning Scheme and the same is required to be sent to the State Government for its sanction under Section 65 of the Act along with suggestions and objections, if any and its own decision. Therefore, it is submitted that notice will be issued to the petitioners and the petitioners will have an opportunity to raise an objection, therefore, no prejudice shall be caused to the petitioners. It is submitted that, therefore, while considering the preliminary scheme afresh, the State Government will also take into consideration the objections and suggestions which may be made by the petitioners. Therefore, it is requested to dismiss the present Special Civil Application.
6.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that in the present case by impugned notification dated 1.7.2010 the State Government in exercise of powers under Section 65 of the Act has refused to give sanction to Preliminary Town Planning Scheme No.33 (Dumbhal), Surat and has remitted the same to the Town Planning Officer to draw/ prepare the Preliminary Town Planning Scheme afresh considering the observations of the inquiry report as well as representations received by the Government and as per the provisions of the Act.
7.0. Before considering the submissions made on behalf of the respective parties and considering the legality and validity of the impugned notification, few provisions of the Gujarat Town Planning Act which are necessary for the determination of the present Special Civil Application and the controversy raised in the present Special Civil Application are required to be referred.
8.0. Section 40 of the Act makes provision for making a contents of a Town planning scheme. Section 41 of the Act provides for power of the appropriate authority to resolve on declaration of intention to make scheme. Section 42 of the Act provides for making and publication of draft scheme. Section 44 of the Act makes provision for contents of draft scheme. Section 47 of the Act provides for submitting the objections relating to such scheme by any person affected by such scheme and the appropriate authority is required to consider such objections and may at any point of time before submitting the draft scheme to the State Government as hereinafter provided modify such scheme as it thinks fit. Section 48 of the Act provides for power of State Government to sanction draft scheme. Section 49 of the Act makes provision for restrictions on use and development of land after declaration of a scheme. Under Section 50 of the Act the Town Planning Officer is required to be appointed after the draft Town planning scheme is sanctioned by the State Government, to prepare the Preliminary Town Planning Scheme which shall be in consonance with the draft Town planning scheme. Section 51 of the Act makes provision for duties of Town Planning Officer. Section 52 of the Act makes provision for contents of preliminary and final scheme. Section 64 of the Act makes provisions for submission of preliminary scheme by the Town Planning Officer to the State Government for its sanction. Section 65 of the Act confers power upon the State Government to sanction or refuse to sanction the scheme and effect of sanction. Sections 49, 50, 51, 52, 64 and 65 which are necessary for determination of the controversy raised in the present Special Civil Application reads as under:
SECTION 49 :
Restrictions on use and development of land after declaration of a scheme (1)(a) On or after the date on which a draft scheme is published under section 41, no person shall, within the area included in the scheme.
carry out any development unless such person has applied for and obtained the necessary permission for doing so from the appropriate authority in prescribed from 19 [and on payment of such scrutiny fees as may be prescribed by regulations];
(b) where an application for permission under clause (a) is received by the appropriate authority, it shall send to the applicant a written acknowledgement of its receipt and after making such inquiry as it deems fit and in consultation with the Town Planning Officer, if any, may either grant or refuse such permission or grant it subject to such conditions as it may think fit to impose;
(c) if the appropriate authority does not communicate its decision to the applicant within three months from the date of acknowledgement of its receipt, such permission shall be deemed to have been granted to the applicant;
(d) If any person contravenes the provisions of clause (a) or of any condition imposed under clause (b) the appropriate authority may direct such person by notice in writing to stop any development in progress, and after making an inquiry in the prescribed manner remove, pull down, or alter any building or other development or restore the land or building in respect of which such contravention is made to its original condition;
(e) any expenses incurred by the appropriate authority under clause (d) shall be a sum due to it under this Act from the person in default;
(f) the provisions of section 35 shall so far as may be, apply in relation to the unauthorised development or use of land included in a town planning scheme;
(g) the restrictions imposed by this section shall cease to operate in the event of the State Government refusing to sanction the draft scheme or the preliminary scheme or in the event of the withdrawal of the scheme under section 66 or in the event of the declaration of intention lapsing under sub-section (3) of section 42;
(h) any diminution in the value of an original plot occasioned by any contravention of the provisions of clause (a) or of any condition imposed under clause (b) shall, notwithstanding anything contained in sections 77, 78 and 79 be taken into account in fixing the market value of such plot.
(2) No person shall be entitled to compensation in respect of any damage, loss or injury resulting from any action taken by the appropriate authority under the sub-section (1) of section 70 except in respect of a building or work begun or contract entered into before the date on which a declaration of intention to make a scheme is published under section 41 or the publication of the draft scheme under sub-section (1) of section 42 :
Provided that where any person is entitled to any compensation in respect of any building or work under this sub-section, he shall be so entitled only in so far as such building or work has proceeded at the time of the declaration of intention or publication, as the case may be, and subject to the conditions of any agreement entered into between such person and the appropriate authority.
(3) On and after the date referred to in clause (a) of sub- section (1), the appropriate authority intending to carry out development of land, within the area included in the scheme, for its own purpose in exercise of its powers under any law for the time being in force shall carry out such development in conformity with the provisions of such scheme, and of the bye-laws and regulations relating to construction of buildings.
(4) The provisions of this section shall not apply to any operational construction undertaken by the Central Government or a State Government.
SECTION 50 :
Appointment of Town Planning Officer (1) Within one month from the date on which the sanction of the State Government to a draft scheme is notified in the Official Gazette, the State Government shall appoint a Town Planning Officer possessing such qualifications as may be prescribed, for the purpose of such scheme and provide him with such number of officers and staff as may be considered necessary and his duties shall be as hereinafter provided. 7 "Provided that the State Government may, on the request made by the Appropriate Authority, appoint a Town Planning Officer within one month from the date of the publication of the Draft Scheme under sub-sec. (1) of Sec. .42."
(2) The State Government may, if it thinks fit, at any time, remove, on the ground of incompetence or misconduct or any other good and sufficient reason a Town Planning Officer appointed under this section and shall forthwith appoint another person in his place and any proceeding pending before Town Planning Officer immediately before the date of his removal shall be continued and disposed of by the new Town Planning Officer appointed in his place:
Provided that no Town planning Officer shall be removed under this sub-section except after an inquiry in which he has been informed to the charges against him and a reasonable opportunity of being heard in respect of those charges has been given to him.
(3) Subject to the provisions of sub-section (2), a Town Planing Officer appointed under sub-section (1) for the purpose of any scheme shall cease to hold office with effect from the date on which the final scheme is sanctioned under section 65.
SECTION 51 :
Duties of Town Planning Officer .-Within a period of twelve months from the date of his appointment the Town Planning Officer shall, after following the prescribed procedure, subdivide the town planning scheme into a preliminary scheme and a final scheme : 8 "Provided that the State Government may, from time to time, by order in writing, extend the said period by such further period or periods as may be specified in the order and any such order extending the period may be made so as to have retrospective effect.".
"Provided also that where the town planning scheme pending before the Town Planning Officer on the date of commencement of the Gujarat Town Planning and Urban Development (Amendment) Act, 1999 (Guj. Act No. 2 of 1999), has not been sub-divided into a preliminary scheme and a final scheme within the period so extended under the second proviso, the State Government may, by order and for reasons to be recorded in writing, extend the period by such further period not exceeding two years in aggregate from the date of expiry of the period so extended under the said proviso and any such order extending the period may be made so as to have retrospective effect.".
SECTION 52 :
Contents of preliminary and final scheme (1) In a preliminary scheme, the Town Planning Officer shall:-
(i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots;
(ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons;
(iii) provide for the total or partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with provisions of section 81;
(iv) determine the period within which the works provided in the scheme shall be completed by the appropriate authority.
(2) The Town Planning Officer shall submit the preliminary scheme so prepared to the State Government for sanction and shall thereafter prepare and submit to the State Government the final scheme in accordance with the provisions of sub-section (3).
(3) In the final scheme, the Town Planning Officer shall-
(i) fix the difference between the total of the values of the original plots and the total of the values of the plots included in the scheme in accordance with the provisions of clause (f) of sub-section (i) of section 77;
(ii) determine whether the areas used, allotted or reserved for a public purpose or purposes of the appropriate authority are beneficial wholly or partly to the owners or residents within the area of the scheme;
(iii) estimate the portion of the sums payable as compensation on each plot used, allotted or reserved for a public purpose or for the purpose of the appropriate authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public, which shall be included in the costs of the scheme;
(iv) calculate the contribution to be levied under sub-section (1) of section 79, on each plot used, allotted or reserved for a public purpose or for the purpose of the appropriate authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public;
(v) determine the amount of exemption if any, from the payment of contribution that may be granted in respect of plots exclusively occupied for religious or charitable purposes;
(vi) estimate the increment to accrue in respect of each plot include in the scheme in accordance with the provisions of section 78;
(vii) calculate the proportion of the contribution to be levied on each plot in the final scheme to the increment estimated to accrue in respect of such plot under sub-section (1) of section 79;
(viii) calculate the contribution to be levied on each plot included in the final scheme;
(ix) determine the amount to be deducted from, or added to, as the case may be, the contribution leviable from a person in accordance with the provisions of section 79;
(x) estimate with reference to claims made before him, after notice has been given by him in the prescribed manner and in the prescribed form, the compensation to be paid to the owner of any property or right injuriously affected by the making of the town planning scheme in accordance with the provisions of section 82;
(xi) draw in the prescribed form the preliminary and the final scheme in accordance with the draft scheme : Provided that the Town Planning Officer may make variation from the draft scheme, but no such variation, if it is of a substantial nature, shall be made except with the previous sanction of the State Government, and except after hearing the appropriate authority and any owners who may raise objections.
Explanation.-
(i) For the purpose of this proviso 'Variation of a substantial nature"
means a variation which is estimated by the Town Planning Officer to involve an increase of ten percent in the costs of the scheme as is described in section 77 or rupees one lac, whichever is lower, on account of the provisions of new works or the allotment of additional sites for public purposes included in the preliminary scheme drawn up by the Town Planning Officer.
(ii) If there is any difference of opinion between the Town Planning Officer and the appropriate authority as to whether a varition made by the Town Planning Officer is of substantial nature or not, the matter shall be referred by the appropriate authority to the State Government whose decision shall be final.
SECTION 64 :
Submission of preliminary scheme and final scheme to Government The Town Planning Officer shall submit to the State Government for sanction the preliminary scheme also before the final scheme is submitted to the State Government under sub-section (2) of section 52, together with copy of his decision under section 53.
SECTION 65 :
Powers of Government to sanction or refuse to sanction the scheme and effect of sanction (1) On receipt of the preliminary scheme or, as the case may be, the final scheme, the State Government may-
(a) in the case of a preliminary scheme, within a period of two months from the date of its receipt, and
(b) in the case of a final scheme, within a period of three months from the date of its receipt, by notification, sanction the preliminary scheme or the final scheme or refuse to give sanction, provided that in sanctioning any such scheme, the State Government may make such modifications as may, in its opinion, be necessary for the purpose of correcting an error, irregularity or informality.
(2) Where the State Government sanctions the preliminary scheme or the final scheme, it shall state in the notification-
(a) the place at which the scheme shall be kept open for inspection by the public, and
(b) a date [***] in which all the liabilities created by the scheme shall come into force :
Provided that the State Government may from time to time extend such date, by notification, by such period, not exceeding three months at a time, as it thinks fit.
(3) On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act.
9.0.
In the present case the draft Town planning scheme came to be sanctioned by the State Government in exercise of powers under sub-section (2) of section 48 in the year 2000. It appears that under the sanctioned Draft Town Planning Scheme original revenue survey no.6 of which the petitioners are claiming to be the occupiers was given Final Plot Nos. 6A and 6B, which came to be reserved for community Centre as well as Public Utility Centre. It appears that thereafter after the Draft Town Planning Scheme No.33 (Dumbhal), Surat came to be sanctioned by the State Government in exercise of power under sub-section (2) of Section 48 of the Act, Town Planning Officer was appointed under Section 50 of the Act to prepare and submit the Preliminary Town Planning Scheme. It appears that thereafter number of petitions were filed by the other persons against the draft Town Planning scheme which came to be disposed of by this Court by order dated 15.9.2005 in Special Civil Application No.13681 of 2005 reserving the liberty in favour of the said persons to submit the appropriate objections at appropriate stages of Preliminary Town Planning Scheme. That thereafter another Special Civil Application No.16709 of 2007 was preferred by the some other persons which also came to be disposed of by the learned Single Judge of this Court by order dated 1.9.2008 recording the statement on behalf of the Town Planning Officer that the Preliminary Scheme will be submitted to the State Government on or around 30.9.2008. It appears that thereafter the Town Planning Officer prepared the Preliminary Town Planning Scheme No.33 (Dumbhal), Surat and sent it to the State Government for its sanction under Section 65 of the Act. It appears that while preparing the said Preliminary Town Planning Scheme No.33 (Dumbhal), Surat in lieu of original land bearing survey no.6 it was proposed to allot final plot nos. 10 and 11 instead of final plot nos. 6A and 6B, which were proposed to be allotted under the Draft Town Planning Scheme which were put under reservation for community Centre and Public Utility Centre. That thereafter the petitioners preferred Special Civil Application No.14216 of 2008 for appropriate writ, direction and order quashing and setting aside the action of the respondent Surat Municipal Corporation in making construction on Final Plot No.11 of T.P. Scheme No.33, Dumbhal, Surat. That the petitioners also prayed for an appropriate order directing the Surat Municipal Corporation to permit the petitioners to possess and occupy the Final Plot Nos. 10 and 11 of T.P. Scheme No.33. That the aforesaid Special Civil Application came to be disposed by this Court directing the State Government to take final decision on the Preliminary Town Planning Scheme submitted by the Town Planning Officer in exercise of powers under section 65 of the Act. It appears that Surat Municipal Corporation made various representations / complaints against the Town Planning Officer as well as preparation of the Preliminary Town Planning Scheme pointing out number of irregularities and illegalities in preparing the the said Preliminary Town Planning Scheme. The State Government also received number of representations/complaints against the aforesaid Preliminary Town Planning Scheme submitted by the Town Planning Officer. Therefore, the State Government decided to hold inquiry and appointed one Shri V.D. Vaghela, Senior Town Planner, Saurashtra Department, Rajkot to inquir into the complaints/representations against the Town Planning Officer as well as the Preliminary Town Planning Scheme prepared by him and thereafter considering the inquiry report the State Government has refused to sanction the said Preliminary Town Planning Scheme No.33 (Dumbhal), Surat in exercise of powers under Section 65 of the Act. Considering Section 65 of the Act the State Government on receipt of the Preliminary Town Planning Scheme may sanction the same or refuse to give sanction. Therefore, the State Government is within its rights to refuse to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer. In the present case, it appears that to arrive at a conclusion and before taking a final decision under Section 65 of the Act, the State Government thought it fit to first satisfy itself with respect to complaints / representations made against the Town Planning Officer as well as Preliminary Town Planning Scheme prepared by him and for that appointed Higher Rank Officer to look into the said complaints who submitted the report after due inquiry and thereafter the said officer submitted the inquiry report pointing out large scale of illegalities committed by the Town Planning Officer in preparing the said Preliminary Town Planning Scheme and inquiry officer has also of the opinion that even the Preliminary Town Planning Scheme has been prepared by the Town Planning Officer de-hors and/ or contrary to the Draft Town Planning Scheme sanctioned by the State Government. That thereafter, after considering the report and having satisfied with respect to large scale of illegalities committed by the Town Planning Officer in preparing the Preliminary Town Planning Scheme, the State Government has refused to sanction the said Preliminary Town Planning Scheme, which cannot be said to be either illegal and/ or arbitrary and/ or perverse which calls for the interference of this Court in exercise of powers under Article 226 of the Constitution of India. Having satisfied with respect to the illegalities committed by the Town Planning Officer in preparing the Preliminary Town Planning Scheme, the State Government has refused to sanction the same which is not required to be interfered with by this Court in exercise of powers under Article 226 of the Constitution of India. This Court would not like to interfere with such a decision of the State Government which is arrived at after holding necessary inquiry. This Court in exercise of powers under Article 226 of the Constitution of India cannot sit as an appellate authority against the decision of the State Government taken under Section 65 of the Act. Unless it is found that the said decision is manifestly illegal and / or arbitrary and/ or perverse, this Court would not like to interfere with the said decision which has been taken on considering objections and after holding necessary inquiry.
10. It is the case on behalf of the petitioners that the impugned notification to refuse to sanction Preliminary Town Planning Scheme is in breach of principles of natural justice and therefore, deserves to be quashed and set aside, cannot be accepted. As such under the provisions of the Act, more particularly, Section 65 of the Act there is no specific provision to give opportunity of being heard to all the persons covered under the Town Planning Scheme. At this stage, while taking a decision not to sanction the Preliminary Town Planning Scheme there is no question of giving any opportunity of being heard to any person. Considering the scheme of the Act once the State Government refuses to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer, matter will again be referred back to the Town Planning Officer for preparing the Preliminary Town Planning Scheme afresh considering the observations made by the State Government while refusing to sanction the said Preliminary Town Planning Scheme and representation and/ or objections received by the State Government against the said Preliminary Town Planning Scheme and thereafter entire procedure as required to be followed by the Town Planning Officer and after the draft town planning scheme is required to be again undertaken by the Town Planning Officer and at that stage the concerned persons shall be given opportunity to submit their objections and suggestions before the Town Planning Officer and thereafter the Town Planning Officer is required to prepare the Preliminary Town Planning Scheme, which the Town Planning Officer is required to send to the State Government for its sanction along with its own decision on such objections and suggestions and thereafter the State Government is required to consider the same. Therefore, the petitioners shall be given opportunity to submit their objections and suggestions by the Town Planning Officer at appropriate stages while preparing the Preliminary Town Planning Scheme and submitting it to the State Government. However, at the stage of refusing to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer, by the State Government in exercise of powers under Section 65 of the Act, no such hearing is required to be given. Under the circumstances, on the aforesaid ground the impugned notification is not required to be quashed and set aside.
11. It is next contended on behalf of the petitioner that assuming that the State Government is justified in refusing to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer, in that case also, the directions issued by the State Government through impugned notification dated 1.7.2010 directing the Town Planning Officer to prepare the Preliminary Town Planning Scheme afresh considering the observations of the inquiry report as well as representations received by the Government is absolutely illegal and contrary to the provision of the statute. It is the case of the petitioners that on refusal to sanction the preliminary scheme by the State Government, the appropriate authority is required to undertake afresh exercise of making Town Planning Scheme from the stage of Section 40 of the Act and that in view of refusal to sanction the preliminary scheme, even the draft scheme will also not survive and even the restrictions under Section 49(1)(g) of the Act shall cease to operate on refusal of sanction by the State Government to the Preliminary Town Planning Scheme. In support of the above submissions, Shri Pahwa, learned advocate for the petitioners has relied upon the provisions of Section 49(1)(g) of the Act. It is also the case of the petitioners that the impugned directions issued by the State Government run contrary to the rights of the petitioners under Section 49(1) of the Act since the impugned directions assume that on refusal to sanction the scheme, fresh proceedings are required to be undertaken from the stage of Section 52 of the Act. It is also the case of the petitioners that the impugned directions would tantamount to interjecting the statutory process contemplated between the provisions contained in Sections 40 and 50 of the Act and the scheme of the Act does not permit any bypassing of the mandatory process as contemplated between these two provisions of the Act.
12. On considering the entire scheme of the Act none of the aforesaid submissions made on behalf of the petitioners have any substance. On refusing to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer, as such what is refused by the State Government is to sanction Preliminary Town Planning Scheme submitted by the Town Planning Officer and not the draft Town planning scheme which is already sanctioned in the year 2000. Therefore, on refusal to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer, the matter is to be sent back to the Town Planning Officer only for preparing the Preliminary Town Planning Scheme afresh and afresh proceedings right from Sections 40 to 50 are not required to be undertaken again as sought to be contended on behalf of the petitioners. The Draft Town Planning Scheme sanctioned by the State Government stands and it is not affected at all by the decision of the State Government under Section 65 of the Act of refusing to sanction the Preliminary Town Planning Scheme. Even the reliance placed upon Section 49(1)(g) of the Act is also misplaced. Section 49 puts restriction on the development of the land included in the scheme, by any persons and/ or after the date on which the draft scheme is published under Section 41 of the Act. Whenever the draft scheme is submitted to the State Government for its sanction under Section 48 of the Act the State Government may sanction the same or refuse to sanction the same. Similarly after the draft town planning scheme is sanctioned by the State Government under Section 48 of the Act and thereafter the Town Planning Officer prepares the Preliminary Town Planning Scheme under Section 52 of the Act and it is sent to the State Government for its sanction, the State Government in exercise of powers under Section 65 of the Act may sanction the said Preliminary Town Planning Scheme and/ or refuse to sanction the same. Therefore, there can be two eventualities on different stages, one at the stage of draft town planning scheme and another at the stage of Preliminary Town Planning Scheme. In light of the above, the provisions of Section 49(1)(g) of the Act provides that the restrictions imposed by Section 49 of the Act cease to operate in the event of the State Government refusing to sanction the draft scheme or the preliminary scheme or in the event of the withdrawal of the scheme under Section 66 or in the event of the declaration of intention lapsing under sub-section(3) of Section 42. On fair reading of Section 49(1)(g) of the Act in case the State Government refuses to sanction the draft scheme restrictions imposed under Section 49 will cease to operate. However, on refusal to sanction the Preliminary Town Planning Scheme by the State Government in exercise of powers under Section 65 of the Act, the restriction imposed under Section 49 of the Act will not automatically cease to operate as sought to be contended on behalf of the petitioners, as still on refusal to sanction the Preliminary Town Planning Scheme, the draft Town Planning scheme would still be there and in existence and therefore, the restrictions under Section 49(1)(g) of the Act would still be in operation. Therefore, the contention on behalf of the petitioners relying upon Section 49(1)(g) of the Act to the effect that on refusing to sanction the Preliminary Town Planning Scheme by the State Government in exercise of powers under Section 65 of the Act, the entire procedure as required to be followed right from Section 40 of the Act is required to be followed and/ or undertaken, cannot be accepted and same has no substance. On refusal to sanction the Preliminary Town Planning Scheme by the State Government, the Town Planning Officer is required to prepare the Preliminary Town Planning Scheme in accordance with law and he has to undertake the exercise from the stages of Section 50 onwards more particularly, Section 52 of the Act i.e. from the stage after the sanction of the draft Town Planning scheme.
13. Now, so far the main grievance made by the learned advocate for the petitioners with respect to direction issued by the State Government issued in the impugned notification dated 1.7.2010 observing that the Town Planning Officer to prepare the Preliminary Town Planning Scheme afresh considering (A) The observation of the inquiry report annexed herewith and (B) Representations received by the Government is concerned, it appears that by observing the same, the State Government has not committed any error and/ or illegality and/ or has not acted contrary to the provisions of the Act. When the Preliminary Town Planning Scheme prepared and submitted by the Town Planning Officer has been rejected and/ or is refused to be sanctioned by the State Government on considering the representations/ complaints against the said Preliminary Town Planning Scheme, while preparing the Preliminary Town Planning Scheme afresh the Town Planning Officer is required to bear in mind the said representations / complaints so that the said illegality and/ or irregularity is not committed again by him while preparing the afresh Preliminary Town Planning Scheme. Therefore, as such no illegality has been committed by the State Government in observing that while preparing the fresh Preliminary Town Planning Scheme, the Town Planning Officer is required to consider the observations of the inquiry report as well as representations submitted by the Government as per the provisions of the Act. The Town Planning Officer is required to take its own decision while preparing the Preliminary Town Planning Scheme and is also required to take its own decision on the objections and suggestions invited while preparing the Preliminary Town Planning Scheme afresh and is required to send the same to the State Government along with the Preliminary Town Planning Scheme when it is sent to the State Government for its sanctioned under Section 65 of the Act. It is to be noted that while preparing the Preliminary Town Planning Scheme, the Town Planning Officer is required to consider Section 52 of the Act r/w Rules 26 of the Gujarat Town Planning Rules. It is to be noted that even the Town Planning Officer is required to draw the Preliminary Town Planning Scheme in the prescribed form in accordance with Draft Town Planning Scheme only. In the present case, it has been found by the State Government that while preparing the Preliminary Town Planning Scheme, the Town Planning Officer has prepared the scheme which was contrary to the Draft Town Planning Scheme, which was not permissible. Therefore, while preparing fresh Preliminary Town Planning Scheme, the Town Planning Officer is required to consider the aforesaid provisions of the Act. It is to be noted that as such there is no direction issued by the State Government in the impugned notification directing the Town Planning Officer to prepare the Preliminary Town Planning Scheme afresh in a particular mode and/ or manner. By impugned notification while refusing to sanction the Preliminary Town Planning Scheme No.33 (Dumbhal), Surat, the State Government has observed that while preparing the Preliminary Town Planning Scheme afresh the Town Planning Officer to consider and /or bear in mind the inquiry report as well as representations received by the State Government so that while preparing the fresh Preliminary Town Planning Scheme the Town Planning Officer may consider the same in accordance with law. It is to be noted that in the impugned notification itself State Government has observed that Town Planning Officer to prepare the afresh Preliminary Town Planning Scheme considering the inquiry report as well as representation received by the State Government in accordance with the provisions of Act. Therefore, as such no illegality has been committed by the State Government in making above observation in the impugned notification while directing the Town Planning Officer to prepare the Preliminary Town Planning Scheme afresh.
14. As stated above now Town Planning Officer shall prepare the Preliminary Town Planning Scheme afresh in accordance with provisions of the Act and Rules, more particularly Section 52 r/w Rule 26 and 27 of the Gujarat Town Planning Rules and considering the observation made by the State Government and at that stage ample opportunity shall be given to the petitioners and other persons by the Town Planning Officer while preparing the Preliminary Town Planning Scheme and submitting it to the State Government as required under Section 52 of the Act r/w Rules 26 & 27 of the Gujarat Town Planning Rules. Therefore, as such no prejudice shall be caused to the petitioners.
15. In view of the above and for the reasons stated above, petition fails and the same deserves to be dismissed and is accordingly dismissed. Rule discharged. No costs. In view of the dismissal of present petition, it is hoped that Town Planning Officer shall now prepare the Preliminary Town Planning Scheme No.33 (Dumbhal), Surat afresh considering the impugned notification dated 1.07.2010 after following due procedure as required under the Act and the observation made hereinabove at the earliest.
(M.R.SHAH, J.) kaushik Top