Gujarat High Court
Town Planning Officer vs Sushilaben M Joshi on 27 August, 2013
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
TOWN PLANNING OFFICER....Petitioner(s)V/SSUSHILABEN M JOSHI C/SCA/9241/1994 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9241 of 1994 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== TOWN PLANNING OFFICER....Petitioner Versus SUSHILABEN M JOSHI & 2....Respondents ============================================================== Appearance: MS SHRUTI PATHAK AGP for the Petitioner No. 1 MR AK CLERK, ADVOCATE for the Respondent No. 2 MR BP MUNSHI, ADVOCATE for the Respondent No. 1 MR JR PANDYA, ADVOCATE for the Respondent No. 1 RULE SERVED for the Respondent No. 3 ============================================================== CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/08/2013 ORAL JUDGMENT
1. Heard learned counsel appearing for the parties.
The petitioner by way of this petition filed under Articles 226 and 227 of the Constitution of India has approached this Court with following prayers;
(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the order at Annexure-A to this petition;
(B) pending admission hearing and final disposal of this petition, your Lordships may be pleased to stay execution, operation and implementation of the order (Ann.A) passed in Civil Appeal No.125 of 1988, by the Board of Appeal on February 28, 1994;
such other and further orders may be passed as this Hon ble Court thinks just and expedient in the interest of justice.
Thus, what is essentially under challenge is the order at Annexure-A dated 28.02.1994 passed by the Board of Appeal constituted under Section 55 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the Town Planning Act , for the sake of brevity) on the ground that the Board did not have jurisdiction to pass the order and hence the order is patently illegal without authority of law and deserve to be quashed and set aside.
Facts in brief leading to filing this petition, as could be gathered from the memo of petition, deserve to be set out as under;
The petitioner happens to be a Town Planning Officer appointed under Section 50 of the Town Planning Act. The respondent No.1 is the owner and occupier of land bearing final plot No.21 and respondent No.2 is the Municipal Corporation in the city of Rajkot and respondent No.3 is also an owner of land bearing final plot no.21 in Town Planning Scheme No.4 of city of Rajkot. The draft Town Planning Scheme No.4 for the city of Rajkot was sanctioned by the State under Section 48 of the Act on 10.08.1978. The Town Planning Officer came to be appointed and he was incharge when the impugned order came to be passed. The Town Planning Officer prepared preliminary town planning scheme and followed the provision of Section 52(2) of the Town Planning Act. The said scheme was published on 11.07.1986. The said preliminary scheme was duly approved and sanctioned by the State vide its notification dated 25.05.1988. Thereafter, the Town Planning Officer prepared and published final scheme as contemplated under the Town Planning Act on 22.12.1986, as per the provision of Section 54 of the Town Planning Act. Total about 12 claimants including the respondent No.1 preferred appeals before the Board and the Board registered the appeal of the respondent No.1, as Civil Appeal No.125 of 1988 and it came to be partly allowed and the direction was issued that the land admeasuring 76 sq. meters from the western part of plot no.18 shall be allotted to the appellant in lieu of the land taken over in the said scheme by the Town Planning Officer. The said order was perceived to be beyond jurisdiction of the Tribunal and hence the present petition is preferred on the grounds mentioned thereunder.
Learned AGP for the State contended that the Scheme of the Act is absolutely clear qua the functions of the different statutory authority as provided in the Act. The role of the State Government is well defined in each and every stage of development planning. The role of the Board comes into play only when an aggrieved party is moving an application in form of appeal only in respect of provision of Section 52(3) sub-clauses III, IV, VI, VII, VIII and X, meaning thereby, in case of any other action not following under the purview of those sub-clauses of Clause 3 of Section 52, the appeal would not be competent. The appellate Board has authority to issue direction only in respect of the clauses wherefrom the appeal is available and when such direction is issued, then those directions are either to be complied with, if it is not resulted into variation of the scheme and the same is to be submitted to the State for final sanction.
6. In the instant case, the direction issued by the Board is obviously not competent within the purview of the Board to be issued, as even Board itself was conscious to its power and hence Board had to constrain itself in writing that even offer of land in lieu of land is a form of compensation and thus it was sought to be justified and hence the said order is being beyond the scope of appeal was vitiated and, therefore, the petition deserve to be allowed.
7. Learned AGP relying upon the entire scheme of the Act qua development scheme contended that the role of the appellate body comes into play when the physical planning is over and the variations are made and the State has accorded its sanction so far as financial aspect of compensation or quantum of compensation etc. are concerned, at that time the vent is provided in form of appeal to the aggrieved party but the legislature has made it so clear that the appellate authority has to function only within the purview prescribed under Section 54(1) in which it is clearly mentioned that the decision of the Town Planning Officer only in respect of Clauses III, IV, VI, VII, VIII and X of sub-section (3) of Section 52 is to be appealed against and no other decision. Admittedly in the present case, the Town Planning Officer s even granting of any plot to the respondent No.1, was not forming part of the decision making process as covered by Clauses III, IV, VI, VII, VIII and X of sub-section (3) of Section 52 and it was in fact a part of the exercise undertaken by the Town Planning Officer while laying down the preliminary scheme and hence the appeal being patently incompetent and also being vitiated and therefore, the same is required to be quashed and set aside.
8. Learned AGP for the State also relied upon Rule 29 to support her submission that the Board could not have proceeded as if the Board was hearing the appeal qua the decision of the Town Planning Officer covered by Section 52(1) and, therefore, on this ground also the impugned order is required to be quashed and set aside.
9. Learned counsel for respondent No.1 contended that the order impugned in this petition is required to be sustained as the same is not vitiated and the Board of Appeal has done substantive justice.
10. Learned counsel for respondent No.1 invited this Court s attention to the reasoning of the Board and contended that the exercise of power of the Board could be said to be emanating from sub-clause X of sub-section 3 of Section 52, which in terms talks about the right of the party in the land in question and, therefore, it may not be said that it is confined only to the financial aspect of the matter. Therefore, the Board s reasoning in light of the aforesaid provision would clearly show that the Board s reasoning is absolutely just and proper and, therefore, the same need not be interfered with in exercise of power under Articles 226 and 227 of the Constitution of India.
11. Learned counsel for respondent No.1 thereafter contended that the relief granted by the Board in terms of direction to Town Planning Officer was in fact very innocuous and did not harm anyone, much less it had any effect of varying the scheme. The provision of Town Planning Act itself envisages variation which is not substantial variation at the end of Town Planning Officer and what is substantial variation is defined under the provision of Section 52 itself. When the direction issued by the Board is not capable of being classified to be a substantial variation, then there was no scope for challenging the same at the instance and by the Town Planning Officer, who is not an authority competent to challenge the decision of the Board.
12. Learned counsel for respondent No.1 thereafter invited this Court s attention to the decision of this Court in case of Mahaprabhu Apartment Co. Op. Hsg. Society Ltd. Vs. State of Gujarat & Another, reported in 1997 (2) G.L.H. 28, contended that there also this Court in unequivocal terms observed that, in case, if the variation sought to be effected by Town Planning Officer is not a substantial one as envisaged by the provision of Section 52, then the said variation is to be carried out and it cannot said to be in any manner offending the provision of the Act. Relying upon these observations, learned counsel for respondent No.1 contended that the direction issued by the Board cannot, therefore, be classified to be an offending direction in any manner nor can it be classified to be varying the scheme in any manner and hence the petition is required to be dismissed in its totality.
13. Learned counsel for respondent No.1 thereafter invited this Court s attention to the decision of the Supreme Court in case of Bihar Public Service Commission and another Vs. Shiv Jatan Thakur and Others, reported in AIR 1994 Supreme Court 2466, and submitted that in the case where the part and parcel of the body corporate is aggrieved on account of its fellow members action or complaining about fellow members conduct, then it was said that it is not open to him as, the decision is that of a body corporate and one member cannot feel aggrieved on that count and has no power to challenge the same on the basis of that analogy. It was sought to be bring out before that Court that Town Planning Officer is not being an independent officer, he could not have challenged the Board s decision as Town Planning Officer was to function within four corners of the statutory provision in which his role is that of advisory agency only and advisory agency cannot be aggrieved on account of the direction issued by the Board. Therefore, on this count also, the petition is required to be dismissed.
14. In furtherance of the aforesaid submission, learned counsel for the respondent No.1 submitted that a substantive challenge also qua locus of the Town Planning Officer for bringing in this petition as he cannot be said to be an aggrieved party so far as the present proceedings are concerned, as no fundamental right of the Town Planning Officer is infringed on account of the direction issued.
14. Learned counsel for the respondent No.1 invited this Court s attention to Section 62 of the Town Planning Act and contended that as per the provision of Section 62, the Town Planning Officer has obligation to act as per the direction issued by the Board and, therefore, all the more the Town Planning Officer did not have any locus to bring in the petition or any action in law as he can not be said to be a party in the proceeding.
15. Learned counsel for respondent No.1 thereafter contended that even Rule 30 of the Rules provides that the Town Planning Officer has duty to forward the final scheme to the State with appropriate variation as per the direction issued by the Board.
16. This Court is of the considered view that the petition is required to be allowed for the following reasons namely;
(i) The contention raised in respect of the locus of the Town Planning Officer is required to be answered by referring to the prayer clause and the provisions of Town Planning Act. The petitioner has invoked Articles 226 and 227 both and has sought issuance of writ of certiorari. The Board has in its operative part issued directions to the Town Planning Officer, who happened to be a statutory authority and statutory functionary. He has to function within the bounds and limits prescribed by the statute i.e. Town Planning Act. Now, as per the Town Planning Act when his role is clearly defined and when any direction is issued to him, which in his view is conflicting with the provision of law or interfering in discharge of his statutory duty, then if there is no other remedy, he is to move this Court only invoking Article 227 or 226 of the Constitution of India, indicating that the authority has exceeded its jurisdiction and issued direction which is not in consonance with the provision of law. Therefore, in my view, the question of locus does not have much substance so as to detain this Court elaborately on this issue any more. Suffice it to say that the entire petition is revolving around the lack of jurisdiction in Tribunal in issuing direction on the subject matter which was obviously outside the purview of the jurisdiction of the Board and, therefore, in my view, the petition is competent and the same is maintainable.
This brings the Court to decide the matter on the merit and the challenge to the order impugned. It is, therefore, very appropriate to set out the relevant provision which defines the Board s power and jurisdiction. The relevant provisions is in form of Sections 52, 53 and 54 of the Town Planning Act, which are set out as under;
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 the 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 provision 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 provision of clause (f) of sub-section (1) 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 included 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 effected 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 Planning Officer to involve an increase of ten per cent in the costs of the scheme as is described in Section 77 or rupees one lakh, 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.
If there is any difference of opinion between the Town Planning Officer and the appropriate authority as to whether a variation 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 thereon shall be final.
Section
53. Certain decisions of Town Planning Officer to be final.- Except in matters arising out of clauses (iii), (iv), (vi), (vii), (viii) and (x) of sub-section (3) of Section 52, every decision of the Town Planning Officer shall be final and binding on all persons.
Section
54. Appeal- (1) Any decision of the Town Planning Officer under clauses (iii), (iv), (vi), (vii),
(viii) and (x) of sub-section (3) of Section 52 shall forthwith be communicated to the party concerned in the prescribed form and any party aggrieved by such decision may within one month from the date of communication of decision, present an appeal to the Board of Appeal constituted under Section 55.
(2)(a) A Board of Appeal existing immediately before the commencement of the Gujarat Town Planning and Urban Development (Amendment) Act, 1999 shall continue to hear and decide appeal until the date on which the Board of Appeal is constituted (hereinafter referred to as the said date ), by the State Government under Section 55, and
(b) all appeals pending on the said date before any Board of Appeal shall stand transferred to the Board of Appeal so constituted.
(ii) Plain and simple reading of the sub-clauses of sub-section 3 of Section 52 would clearly indicate that the Board s role is confined to the matters arising from the orders of Town Planning Officer touching upon those aspects only. The aspects of allocation of plot or varying the size of plot or resizing the plot being essentially covered by the provision of Section 52(1) and at that stage finality is attained and scheme was duly sanctioned by the State, no authority including the Town Planning Officer had any power to make any variation thereunder. The variation could be done only by the State that is the sanctioning authority. The variation which have been envisaged by the provision of Section 52(3) is the variation qua the questions which are pertinent to arising in respect of the clause mention in Section 54 and that variation be substantial or unconsequential need not be telescoped into Section 52 (1) so as to clothe the concerned appellate body with power to make suggestion that amounts to having variation in the functioning and determination of the scheme or plots which have attained finality. When the State has duly sanctioned, then after Town Planning Officer made it under Section 52(1) and sub-clauses (i) to (iv), therefore, in my view, the decision cited at the bar in case of Mahaprabhu Apartment Co. Op. Hsg. Society Ltd. Vs. State of Gujarat & Another (supra) would be of no avail, as in that case it was Town Planning Officer s own decision to effect variation in light of the fact that despite the scheme was sanctioned, the implementation was impossible on account of vociferous responsibility on the part of the residents of the locality and at that time and in that situation, the Court has opined that the variation, as suggested and proposed, was not a substantial variation. This Court has serious reservation qua the proposition canvassed. But even if that proposition is taken to its logical end, then also the same would not help the present respondents in any manner as the instant case is absolutely different on facts as in the instant case the Town Planning Officer in his statutory power vitiated and demarcated the land and submitted the scheme which was duly sanctioned by the State Government in exercise of the statutory power, then by stretching the provision of clause X of sub-section 3 of Section 52 the appellate Board cannot clothe itself with the power to reopen the scheme which has attained finality so far as the act, omission and action covered by Section 52 sub-section(1) clause I to IV, therefore, in my view the order needs quashment as the same cannot be sustained.
(ii) The decision in case of Bihar Public Service Commission and another Vs. Shiv Jatan Thakur and Others (supra) is also of no avail, as the Court has already opined that the locus is very much existing and the facts of the case cited are different. There it was a body corporate and one member of the body corporate was interested in challenging the decision of the body corporate which obviously cannot be permitted in light of the fact that body corporate functions as a single body, wherein in the instant case the statutory authority has approached the Court on account of a direction which according to him was in conflict with the provision of statute i.e. is Town Planning Act.
17. The order impugned, therefore, in my view deserves to be quashed and is accordingly quashed. Rule is made absolute. However, there shall be no order as to costs. These observations were made qua the challenge to the order impugned and its sustenance, it may not affect the respondent s right to approach the State, if available under law for appropriate relief, as the scheme has yet not been finalized, as submitted by learned counsel for the respondent No.1.
(S.R.BRAHMBHATT, J.) Pankaj Page 15 of 15