Gujarat High Court
Virendrasingh Kevalsingh Kushwaha vs State Of Gujarat on 21 September, 2022
C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18890 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VIRENDRASINGH KEVALSINGH KUSHWAHA & 16 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR N R DESAI(6504) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,2,3,4,5,6,7,8,9
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,2,3,4,5,6,7,8,9
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2,3
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 21/09/2022
CAV JUDGMENT
1. Today, the present petition is heard for final disposal as agreed by learned advocates appearing for Page 1 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 the respective parties. The present petition is filed by the petitioners seeking for following prayers:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or a writ in the Mature of mandamus or any other appropriate writ, order or directions quashing and setting aside notification dated 12.07.2011 of the State Government (at ANNEXURE-E hereto) as well as Draft Town Planning Scheme No.61 (Parvat), Godadara, Surat (at ANNEXURE-D hereto), as far as it relates to plot where the properties of the petitioners are situated and further be Pleased to quashed and set aside order dated 12-12-2014 issued by the respondent-Corporation (at ANNEXURE-3 hereto (Colly.);
(B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further operation, implementation and execution of notification dated 12.07.2011 issued by the State Government (at ANNEXURE-
E hereto) as well as order dated 12-12-2014 issued by the respondent Corporation (at ANNEXURE-Jd (Colly.) and direct the respondent Page 2 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 authorities to maintain status-quo with regard to the plot where the houses of the petitioners are situated;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
2. The brief facts of the present case are as under:
2.1 The petitioners are residing/doing business at the addresses mentioned in the cause-title of the present petition since last number of years with their respective families. The petitioners have electric connections and are paying electricity bills as well as other taxes levied by the respondent - Corporation. As per the development plan of the then SUDA, minor portion of road was passing through Block No.162/2. Thereafter, Draft Town Planning Scheme No.61 (Parvat), Gadodara, Surat has been prepared in utter violation of law wherein from the land where the properties of the petitioners are situated, considerable road is passing through the same. Further, Draft Town Planning Scheme No.61 has been sanctioned by the State Government by issuing notification dated Page 3 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 12.07.2011. On 20.09.2013 the respondent-Corporation has issued notices to the petitioners for vacating the premises in question within a period of 07 days. In fact, order and contents clearly show that the respondent -
Corporation has already made up its mind to demolish the premises of the petitioners and the petitioners have replied to the said notices dated 05.10.2013. In view of the above, the petitioners preferred a writ petition being Special Civil Application No.15787 of 2013 before this Hon'ble Court, which was disposed of vide order dated 23.06.2014 wherein it is clearly observed that it would be open for the petitioners to file representation(s) and raise all contentions, which are raised in the petition and after hearing the petitioners, appropriate reasoned order would be passed, pursuant to the aforesaid order dated 23.06.2014 of this Hon'ble Court the petitioners made representations to the respondent - Corporation and the said representation of the petitioners have been dismissed by orders dated 12.12.2014 while preparing and sanctioning the Draft Town Planning Scheme and no personal notices were issued to the petitioners though the respondent-Corporation is collecting taxes from the petitioners and is aware that the petitioners and are Page 4 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 having their properties over land situated at Block No.162/2. Moreover, it is that major extension of the road in Town Planning Scheme in question, which is made from one side only so as to see that the properties of the petitioners are demolished and the properties situated on the opposite side of the road are saved.
3. Heard learned advocate Mr. S.P. Majmudar for the petitioners, learned Assistant Government Pleader Mr. Meet Thakkar for the respondent No.1 - State and learned advocate Mr. Dhaval G. Nanavati for the respondent Nos.2 and 3. Since the matter is of the year 2014, it is heard for final disposal.
4.1 Learned advocate Mr. Majmudar for the petitioners has submitted that the case is basically under Rule 26(4),(5)&(6)of the Gujarat Town Planning & Urban Development Act, 1976 (for short "the Act") read with Sections 51 and 52 of the Act. He has drawn the attention of this Court towards the possession receipt issued on 29.09.2004, wherein agreement of sale is executed between the parties on 21.11.1988. He has also drawn the attention of this Court towards the order Page 5 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 passed by this Court in the case of Pravin Prakash Sukharamji Chaudhary and 20 others Vs. State of Gujarat & two others rendered in Special Civil application No.7232 of 2013 and other allid matters dated 23.06.2014, wherein the respondent - corporation is directed to hear the aggrieved petitioners and take decision after considering the contentions raised by the respective parties.
4.2 Further, the decision given by the respondent corporation for Sub-Plot No.68 and other plots in Final Plot No.151 of Ganesh Nagar Division-1, Godadara Nahar Road, Godadara, it can be said that when order is not passed after considering the objections raised by the petitioners, it cannot be termed as a reasoned order and therefore, he has submitted that in view of the judgments of the Hon'ble Apex Court in the case of Ahmedabad Municipal Corporation and Another vs. Ahmedabad Green Belt Khedut Mandal and Others reported in 2014 7 SCC 357 and also the judgment of this Court in the case of Babubhai and Co, M/s. Vs. State of Gujarat reported in 1985 2 GLR 883 and more particularly, para 8 is important, wherein in the above Page 6 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 judgments, it is directed that the authority concerned is required to pass reasoned order.
4.3 He has further submitted that the language of Section 68 of the Gujarat Town Planning & Urban Development Act, 1976 pertains to the occupant and the present petitioners can be considered as occupiers of the plot and therefore, he prays that this Court should exercise the powers conferred under Article 226/227 of the Constitution of India by interfering in the impugned action of the respondent corporation and quashing and setting aside the judgment and order dated 12.12.2014.
4.4 He has alternatively prayed that since the petitioners are residing at the said plot, on sympathetic ground, the case of the present petitioners is required to be considered.
5.1 Per contra, learned advocate Mr. Dhaval Nanavati has submitted that the petitioners have no locus on the basis of possession receipt as well as on the basis of agreement to sell.
Page 7 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 5.2 He has relied upon the judgment of the Hon'ble Apex Court in the case of Babulal Badriprasad Verma Vs. Surat Municipal Corporation & Others reported in 2008 12 SCC 401, more particularly, paras 40, 41 and 42 of that judgment are relevant for this matter.
5.3 He has further submitted that the petitioners have not raised any objection at the respective stage of the finalization of the Gujarat Town Planning & Urban Development Act, 1976 from the Drafts Scheme to the preliminary scheme, therefore, it can be said that the petitioners have waived their right.
5.4 He has further submitted that principles of natural justice is also followed by corporation and every contentions raised by the petitioners are not as such required to be dealt with by the authority concerned, but in substance, the authority concerned is required to be considered the objections. He has relied upon the judgment of the Hon'ble Apex Court in the case of Ahmedabad Municipal Corporation and Another (supra) , more particularly para 55 of that judgment is relevant.
He has further argued that the submission about the Page 8 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 individual interest is also not proper in view of the judgment of this Court in the case of Ramanbhai Hargovinddas Limbachina Vs. State of Gujarat reported in 2016 3 GLR 2695. He has further submitted that the authorities have not committed any error in considering while deciding the objection and by passing the impugned order dated 12.12.2014, which is in compliance with the direction of this Court and since the petitioners have no locus, therefore, there is no merit in the present petition of the petitioners and he prays to dismiss the present petition by passing the necessary order so that the respondent corporation may act further, in accordance with law.
6.1 I have heard rival contentions of the respective parties. I have considered the possession receipt as well as agreement to sell. I have also gone though the impugned order passed on 12.12.2014.
6.2 It is clear from the rival contentions that it can be said that the petitioners have no locus to file the present petition in view of the judgment of the Hon'ble Apex Court in the case of Babulal Badriprasad Verma Page 9 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 (supra), more particularly paras 40, 41 and 42 are relevant, which are reproduced herein below:
"40. It is not in dispute that:
(a) Appellant although filed an objection with regard to the draft scheme, did not choose to pursue it.
(b) He did not file objections for re-allotment and did not participate in the proceedings following acquisition instituted by the authorities under the Act.
41. In view of the above, the issue is whether it was open to him to assert his purported right to special notice in respect of the final allotment in the instant case given the fact that he did not pursue his objections to the draft scheme and subsequently did not object/participate during the proceedings for re-allotment.
42. It has been noticed by us hereinbefore that under Rule 26 of the Rules applicable in the instant case, as distinguished from the Bombay Rules (wherein special notice is Page 10 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 required), no special notice is mandatorily required to be served. Assuming, however, that it was obligatory for the State to issue notice to the appellant, the question is whether the principle of waiver precludes him from claiming equitable relief in this case due to his earlier conduct which allowed the entire process of acquisition and allotment to become final. We are of the opinion that even if he had any such right, he waived the same."
Further, looking to the facts of the present case, where the petitioners have not pursued further of their rights of filing appropriate objection, the abovemention judgment is directly applicable to the facts of the present case and it can be said that the petitioners have waived their respective rights at relevant stages.
6.3 Section 47 of the Act, 1976 is relevant, which reads as follows:
"47. Objections to draft scheme to be considered. - If within one month from the date of publication of a draft scheme, any Page 11 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 person affected by such scheme communicates in writing to the appropriate authority, any objections relating to such scheme, the appropriate authority shall consider such objections and may at any time before submitting the draft scheme to the State Government as hereinafter provided modify such scheme as it thinks fit.
[Provided that the appropriate authority may, in such circumstances as may be prescribed and with the previous sanction of the State Government, reduce the aforesaid period of one month to fifteen days for inviting objections to the draft scheme.]"
6.4 Further, considering the submission regarding the individual interest, it is noteworthy to refer the judgment of the Hon'ble Apex Court in the case of Ahmedabad Municipal Corporation and Another (supra) , more particularly para 55 is relevant, which reads as under:
"55. It is a settled legal proposition that hardship of an individual cannot be a ground Page 12 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal."
6.5 It can be held that a person suffers from hardship, it cannot be a ground for not giving effective grammatical meaning to every word of the provisions of law if the language, used therein is unequivocal. It is also fruitful to refer the judgment of this Court in the case of Ramanbhai Hargovinddas Limbachina (supra), more particularly paras 3.3 and 3.5 are relevant, which are reproduced as under:
"[3.3] Considering section 48A of the Town Planning Act and as the land in question is needed for 36 meter road under the sanctioned Draft Town Planning Scheme, the provision of sections 68 and Page 13 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 69 shall mutatis mutandis apply to the sanctioned draft scheme as if sanctioned draft scheme were a preliminary scheme. Under the circumstances, when the land in question is forming part of Town Planning Road of 36 meter and therefore, by virtue of section 48- A(i) of the Town Planning Act, the said land shall vest absolutely in the appropriate Authority free from all encumbrances on the date on which the draft scheme is sanctioned under section 48(2) of the Town Planning Act and thereafter when the impugned orders are passed in exercise of powers under Sections 48A, 67 and 68 of the Town Planning Act and Rule 33 of the Town Planning Rules, the same cannot be said to be either illegal and/or contrary to the provisions of the Town Planning Act. The action of the respondent Corporation / appropriate Authority is absolutely in consonance with the provisions of the Town Planning Act more particularly section 48A of the Town Planning Act. Under the circumstances, the learned Single Judge has rightly dismissed the main Special Page 14 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 Civil Application.
[3.5] It is required to be noted that even such objection could have been raised at the time when before the draft Town Planning Scheme was sanctioned, objections were invited. Nothing is on record that those persons who claim to be in possession prior to 2000 raised any objection against the draft Town Planning Scheme under which 36 meter road was proposed. Now, so far as those who have purchased the land in 2008 are concerned, as observed hereinabove, they would have no locus to raise any objection against the draft Town Planning Scheme as neither they have any valid title as they purchased the premises in the March 2008 i.e. after the draft Town Planning Scheme came to be sanctioned in the year 2000 and after the land in question was vested absolutely in the appropriate authority for implementing the Town Planning Scheme and more particularly as mentioned insection 48A, 67, 68 of the Town Planning Act and Rule 33 of the Town Planning Rules."Page 15 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022
C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 6.6 Further, considering the abovementioned judgments and material available on the record, I am of the opinion that the authorities have not committed any error and it is clear from the order passed by the competent authority that it has not only assigned reasons for not accepting the objections/representations of the petitioners but also recorded relevant contentions in brief raised in the said representation. I find no illegality or infirmity in the impugned order passed by the authority concerned in rejecting the representation/objection.
6.7 I also found that having regard to the contention regarding the non-application of mind by authority in considering the representation made by the petitioners and order is passed without assigning reasons, I found that authority concerned, while deciding the representation has considered the relevant submissions made by the petitioners about the case of the petitioners that no notice was served and non service of individual notice to the petitioners I found that in view of Section 14, 46 and 52 of the Act, 1976, the order is passed in Page 16 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 accordance with law.
6.8 It is also relevant to note that the Town Planning Officer is appointed under Section 50 of the Act, 1976 and in the present case, Executive Engineer has followed the procedures laid down under Rule 26 of the 1979 Rules under the Town Planning Act. After considering the objections raised on the part of the petitioners the decision has been taken, which has attained finality under Section 67 of the said Act and have followed by them. It is also relevant to note that considering the judgment of the Division Bench of this Court in the case of Cosmos Development Corporation Vs. State of Gujarat through Secretary reported in Letter Patent Appeal No.87 of 2011 dated 16.03.2016 , more particularly paras 12, 13, 16, 19, 20, 21, 23, 25, 27 and 28 are relevant, which are reproduced herein below:
"12 Per contra, Mr.Prashant Desai, learned senior counsel appearing for respondent Nos.2 and 3 would contend that the record of the case before the authority while considering representation made by the petitioner for variation of the scheme as prayed for under Page 17 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 the provisions of Sections 70 and 71 of the Town Planing Act, averments made in the writ petition under Article 227 of the Constitution of India before the learned Single Judge and decisions taken in this regard by the authority including that on the representation made by the petitioner and procedure followed at every stage of the Act, 1976, would reveal that neither illegality nor any irregularity is committed by the competent authority at any stage. Taking the Court to the scheme of the Act, 1976, specially to provisions of Section 40 of chapter
(v), pertaining to Town Planing Scheme and making contents of a Town Planing Scheme, Section 42 making and publication of draft scheme, Section 43 and 44 about power of State Government to require appropriate authority to make a scheme and contents of drafting scheme, Section 45 reconstitution of plots and Section 46 disputed ownerships and objections to drafting scheme to be considered under Section 47 and 48, power of State Government to sanction drafting scheme and subsequently inserted provision under Section Page 18 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 48 (A) vesting land in appropriate authority which is akin to provisions of Sections 68 and 69 of the Gujarat Town Planing and Urban Development Act, 1976 and finally to Section 50 about appointment of Town Planing Officer, duty cast upon such Officer, namely, Rule 16 about publication of declaration under Section 41 read with Rule 17. Rule 18 of draft scheme and elaborate procedure to be followed by Town Planing Officer under Rule 26 while dealing with objection and forward the same to the Government that at no stage, any objection about clubbing of Revenue Survey Nos.609 and 607 was raised by the petitioner.
13. It is submitted that in absence of any legal right accruing in favour of the petitioner, the very representation for varying scheme was out of the context of the scheme of the Act, 1976. It is submitted that procedure followed by the authority under the Act, 1976 of issuing notices to which reference is already made by the learned counsel for the petitioner, to all concerned, whose names Page 19 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 were appearing in the revenue record or the authority could find out from other official record. From 1993 to 2000, various opportunities at different stages were given to those who were entitled to receive notices to which no objection was raised. In addition to above, it is submitted that when the authority concerned issued notice under provisions of the Act,1976, at no stage any reply was received to notice by the affected parties. Even a public notice is issued in widely circulated vernacular newspaper and thereafter, also no objection was received. According to Mr.Prashant Desai, learned senior counsel for the respondents while dealing with the representation submitted by the petitioner pursuant to opportunity granted by the Court in the order dated 17.7.2009 passed in Special Civil Application No.7248 of 2009, after recording contentions raised by the petitioner in representation and referring to provisions of Section 70 of the Act, 1976, reasons are assigned which include pending disputes about title, ownerships and even possession of the subject land. It is further Page 20 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 submitted that in the above scenario, rejection of the representation of the petitioner was not only on the ground of pending civil disputes or litigation before appropriate civil suit but also other reasons or grounds contained therein.
16. Further reliance is placed on the decision in the case of Kashiben Wd/o Pitamber Devchand and anr. v/s State of Gujarat and anr. reported in GLR 1989 (2) 1177, to contend that once a final scheme is prepared, it must be deemed to be part of Act and that original owner loses all rights over the land and he is liable to be evicted and having no locus to even file a writ petition. Another decision relied in the case of N. Nanalal Kiklawala and anr. v/s State of Gujarat reported in AIR 2006 Supreme Court 1, in support of his submissions that statutory consequences would ordinarily follow and no stay can be granted when scheme received sanction in exercise of power under Section 65 of the Act. Thus, according to Mr.Prashant Desai, learned senior Page 21 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 counsel appearing for the respondents in absence of any legal right of the petitioner to seek variation and fair and transparent procedure followed in exercise of statutory as well as executive power by the authority at every stage of preparing Town Planing scheme, in absence of merit, no interference is called for in this appeal filed by the petitionerappellant.
19. In the context as above reliance placed by Mr.Percy Kavina, learned Senior advocate appearing for the petitioner appellant on various provisions of the Act are considered and reproduced herein below:
" Section2: Definition.
In this Act, unless the context otherwise requires ,
(i) "agriculture" includes
(a) horticulture;
(b) farming;
(c) raising of corps, fruits, vegetables, grass, fodder, Page 22 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 other kind of cultivation; trees or any
(d) breeding and keeping live stock, including horses, donkeys, mules, pigs, fish, poultry and bees; and
(e) the use of land for any purpose which is ancillary to its cultivation or to any other agricultural purpose.
(xviii) "owner" in relation to any property, includes any person who is, for the time being receiving or entitled to receive, whether on his own account or on account of or behalf of, or for the benefit of, any other person or as an agent, trustee, guardian, manager or receiver for any other person or for any religious or charitable institution, the rents or profits of the property; and also includes a mortgagee in possession thereof;
Section40: Making and contents of a town planning scheme.
Section41: Power of appropriate authority Page 23 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 to resolve on declaration of intention to make scheme.
Section42.: Making and publication of draft scheme.
Section43: Owner of State Government to require appropriate authority to make scheme.
Section44: Contents of draft scheme.
Section45: Reconstitution of plots.
(1) In the draft scheme referred to in Section 44, the size and shape of every plot shall be determined, so far as may be, to render it suitable for building purposes and where the plot as already built upon, to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open spaces.
(2) for the purpose of subsection (1), the Page 24 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 draft scheme may contain proposals.
(a) to form a final plot by the reconstitution of an original plot by the alteration of its boundaries, if necessary;
(b) to form a final plot from an original plot by the transfer of any adjoint lands;
(c) to provide with the consent of the owners that two or more original plots which are owned by several persons or owned by persons jointly be held in ownership in common as a final plot, with or without alteration of boundaries;
(d) to allot a final plot to any owner dispossessed of land in furtherance of the scheme; and
e) to transfer the ownership of a plot from one person to another.
(3) Whereunder clause (k) of subsection
93) of section 40, the purpose to which buildings or specified areas may not be appropriated have been specified, the buildings shall cease to be used for a purpose other than the purposes Page 25 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 specified in the scheme within such time as may be specified in the final scheme and the person affected by the provision shall be entitled to compensation from the appropriate authority in the manner and according to the method prescribed:
Provided that in ascertaining such compensation the time within which the person affected was permitted to change the use shall be taken into consideration.
Section46: Disputed ownership .
(1) Where there is a disputed claim to the ownership of any place of land included in an area in respect of which a declaration of intention to make a scheme has been made and any entry in record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, an inquiry may e held on an application being made by the appropriate authority or the Town Page 26 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 Planning Officer at any time prior to the date of which the Town Planning Officer draws up the preliminary scheme under section 51 by such officer as the State government may appoint for the purpose of deciding as to who shall be deemed to be the owner for the purpose of this Act.
(2) Such decision shall not be subject to appeal but it shall not operate as a bar to a regular suit in a court of competent jurisdiction.
(3) Such decision shall, in the event of a Civil Court passing a decree which is inconsistent therewith, be corrected, modified or rescinded in accordance with such decree as soon as practicable after such decree has been brought to the notice of the appropriate authority by the person affected by such decree.
Section47: Objections to draft scheme to be considered.
Page 27 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 Section48: Power of State Government to sanction draft scheme.
(1) The appropriate authority shall, within [three] months from the date of the publication of the draft scheme in the Official Gazette, submit the draft scheme with any modifications that may have been made therein under section 47 together with the objections which may have been communicated to it, to the State Government.
(2) If the State Government sanctions such scheme, it shall in such may think fit, the State Government may, within [three] months from the date of its receipt, such notification, sanction such scheme with or without modifications or subject to such conditions as it may think fit to impose or refuse to sanction it.
(3) It the State Government sanctions Page 28 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 such scheme, it shall in such notification state at what place and time the draft scheme shall be open for the inspection of the public.
Section48A: Vesting of land in
appropriate authority.
Section50: Appointment of Town
Planning Officer.
Section51: Duties of Town Planning
Officer.
Section65: Power 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 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 Page 29 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 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 (xxxx) in which all the liabilities created by the scheme shall come into force:
(xxxx) Dated by Guj. Act No.11 of 2002 th words "(Which shall not be earley Page 30 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 than one month after the date of publication of the notification)"
Provided that the State Government may from time to time 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.
Section67: Effect of preliminary scheme.
On the day on which the preliminary scheme comes into force-
(a) all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances;
(b) all rights in the original plots which Page 31 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 have been reconstituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer.
Section70: Power to vary scheme on ground of error, irregularity or informality.
(1) If after the preliminary scheme or the final scheme has come into force, the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the scheme.
(2) If on receiving such application or otherwise, the State government is satisfied that the variation required is not substantial, the State Government shall publish a draft on such variation in the prescribed manner.
Page 32 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 (3) The draft variation published under subsection (2) shall stage every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of subsection (3) of section 40, the draft variation shall also contain such other particulars as may be prescribed.
(4) The draft variation shall be open to the inspection of the public at the head office of the appropriate authority during office hours.
(5) Within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government through the Collector and send a copy thereof to the appropriate authority.
(6) After receiving the objections under subsection (5), the Stage Government may, after consulting the appropriate Page 33 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 authority and after making such inquiry as it may think fit, by notification;
(a) appoint a Town Planning Officer and thereupon the provisions of this Chapter shall, so far as may be, apply to such draft variation as if it were a draft scheme sanctioned by the Stage Government, or
(b) make the variation with or without modification, or
(c) refuse to make the variation.
(7) From the date of the notification making the variation, with or without modification, such variation shall take effect as if it were incorporated in the scheme.
Section71: Variation of town planning scheme by another scheme.
Notwithstanding anything contained in section 70, a town planning scheme may Page 34 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 at any time be varied a subsequent scheme made, published and sanctioned in accordance with the provisions of this Act.
Rule16: Publication of declaration under section 41.
(1) The declaration under subsection (1) of section 41 shall be published in the Official Gazette and shall also be published by means of an advertisement in one or more Gujarati newspapers circulating within the jurisdiction of the appropriate authority. The appropriate authority shall cause copies of such advertisement to be pasted in the prominent places in or near the area included in the scheme and at the head office of the appropriate authority.
(2) Every advertisement published under subrule (1) shall contain the resolution of the appropriate authority in respect of the declaration under section 41 and Page 35 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 shall announce that a copy of the plan of the area proposed to be included in the town planning scheme and the surrounding lands is kept open for inspection of the public at the head office of the appropriate authority during office hours.
Rule17: Meeting of owners and framing of tentative proposals.
For the purpose of making the draft scheme under section 42 the appropriate authority shall call a meeting or meetings of the owners of the lands included in a town planning scheme by a public notice as well as by individual notice to every owner whose address is known to the appropriate authority and explain in such meeting the tentative proposals of the draft scheme for eliciting public opinion and suggestions on the said proposals. The ppropriate authority may take into consideration all such suggestions made and objections Page 36 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 raised on the proposals for making the draft scheme under section 42.
Rule18: Publication of draft scheme under section 42.
(1) The draft scheme under section 42 shall be published by means of an advertisement in the Official Gazette and shall also be published in one or more Gujarati newspapers circulating within the area of the appropriate authority. The appropriate authority shall also cause copies of such advertisement to be pasted at the head office of the appropriate authority and at other prominent places in or near the area included in the draft scheme. The advertisement shall state that a copy of the scheme is open for public inspection at the head office of the appropriate authority during office hours.
(2) Every advertisement published under subrule (1) shall announce that if within Page 37 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 one month from the date of publication of the draft scheme in the Official Gazette any person affected by such scheme communicate in writing to the appropriate authority any objection relating to such scheme, the appropriate authority shall consider such objections before submitting the draft scheme to State Government under section 48.
Rule26: Procedure to be followed by Town Planning officer under section 51 and under subsection (1) of section 52.
(1) For the purpose of preparing the preliminary scheme and final scheme the Town Planning Officer shall give notice in Form H of the date on which he will commence his duties and shall state therein the time, as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Town Planning Scheme shall be entitled under section 82 to make a claim before him. Such notice Page 38 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 shall be published in the Official Gazette and in one or more Gujarati newspapers circulating within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer.
(2) The Town Planning Officer shall after the date fixed in the notice given under subrule (1), continue to carry on his duties as far as possible on working days and during working hours.
(3) The TownPlanning Officer shall, before proceeding to deal with the matters specified in section 52, publish a notice in Form H in the Official Gazette and in one or more Gujarati newspapers circulating within the area of the appropriate authority. Such notice shall specify the matters which are proposed to be decided by the Town Planning Officer and State that all persons who Page 39 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of (fifteen days in the cases provided in the proviso to subrule(2) of Rule 18 of the said rules) from the publication of notice in the Official Gazette. Such notice shall also be pasted at the office of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality.
(4) The Town Planning Officer shall give every person interested in any land affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations if any.
(5) If during the proceedings, it appears to the Town Planning Officer that there Page 40 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 are conflicting claims or any difference of opinion with regard to any part of the scheme, the town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons therefore. All such minutes shall be appended to the scheme.
(6) The Town Planning Officer shall record and enter in the scheme every decision given by him. The calculations and estimates shall be set out and recorded in Form F, Form G and in other statements as may be prepared by the Town Planning Officer.
(7) The scheme as drawn up by the town Planning Officer shall include particulars specified in rule 21 read with section 52.
(8) The component parts of the scheme shall be so arranged that they may be Page 41 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 readily referred to in connection with the map and plans.
(9) The Town Planning Officer shall publish the scheme drawn up by him by notification in the Official Gazette in Form I and also by means of an advertisement in one or more local newspapers announcing that the scheme shall be open for the inspection of the public during office hours at his office and communicate forthwith the decisions taken by him in respect of each plot to the owner or person interested, by the issue of the requisite extract from the scheme in Form J and Form K as the case may be. The Town Planning Officer shall also inform the [State Government] about the publication of final scheme."
20. We have heard learned senior counsel for the respective parties and taken into consideration the submissions made by learned senior counsel for the petitioner about not affording any opportunity of hearing to the Page 42 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 petitioner, we find that as per available official record, at every stage, the competent authority under the Act, 1976 has issued notices to those whose names were found in revenue or official record and such notices dated 26.2.1992, 10.5.1994, 12.9.1995, 7.1.1999 and later on notices dated 7.9.2007 and 10.9.2007, were issued to legal heirs of the original owners, societies, vendors, even Court receiver and the concerned District Collector, but as nowhere name of holder of agreement to sale was reflected in any official record and no notice was issued, thus, it cannot be said that the petitioner was either eligible or entitled to receive such notices. Even if definition of Section 2 (xvi) (xviii) with regard to 'occupier' and 'owner' are broadly considered and interpreted, no right accrues to holder of agreement to sale the subject land, to complain about irregularity or any error or informality in the Town Planning Scheme and particularly in the facts of this case the very fact about title 'ownership' 'Possession', etc. was in dispute in a pending civil litigation. We find neither on the ground of merit Page 43 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 namely, any error irregularity or informality nor on the aspect of pending civil disputes between the parties, the authority has erred in rejecting the representation.
21. There is a force in the arguments canvassed by Mr.Prashant Desai, learned senior counsel appearing for the competent authority of the Act, 1976 that not only individual notices were issued to affected persons, but public notices in vernacular daily newspaper were published and at no point of time any objection was lodged, though the span of taking decision by Town Planning Authority under Section 50 of the Act, 1976 relate to 1992 to 2007. So far as dispute to be decided by the authority under Section 46 is concerned, it would not detain us any longer since simple language of the provision referred to a disputed claim to the ownership in the place of land included an area for which a Town Planning Scheme is to be made is only with regard to entry of right or mutation relevant to such disputed claim is either inaccurate or in conclusive and upon Page 44 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 application being made by the party. The enquiry may be held on an application made by the appropriate authority. The State of Gujarat appointed the officer for the purpose of deciding such dispute, etc. and so is not the case as revenue records clearly revealed the name of original landlords and legal heirs and other occupiers. It may not be out of place to mention that by virtue of Section 48(A) about vesting of land in appropriate authority, it is clear that when a draft scheme has been sanctioned by the State Government under sub Section (2 ) of Section 48, all lands required by the appropriate authority for the purpose specified in clause
(c), (f), (g) and (h) of sub Section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances and sub Section (3) of Section 48(A) further makes it clear that the provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme, as if sanctioned draft scheme were a preliminary scheme.
Page 45 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022
23. So far as the contention raised with regard to non application of mind to the representations submitted by the petitioner and order is passed without assigning reasons is concerned, we find that concerned authority, while deciding representation has reproduced main arguments and submissions made by the petitioner about not affording opportunity of hearing by Town Planning Officer and no notice was served and that Court receiver was not given any notice though the possession of the land was with Court receiver since 2008 and non service of individual notice to the petitioner and reliance placed on Sections 17, 46 and 52 of the Act, 1976.
25. Thus, it is clear that order passed by the competent authority has not only assigned the reasons for not accepting representation of the petitioner but also recorded all main and relevant contentions in the representation. We find no illegality in the above order passed by the authority in rejecting the representation and therefore, decision relied on Page 46 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 by learned senior counsel for the petitioner in the case of Kartik Patel (supra) will have no applicability in the facts of this case. More so, while rejecting the petition, the learned Single Judge has not closed the rights in case if the petitioner is desirous to move the Civil Court to get appropriate order against the original owner or direction to the receiver to make an application to the competent authority.
27. Looking to the definition of Section 2 (xvi) 'occupier' and (xviii) 'owner', the appellant who holds only an agreement to sale of which no sale deed is executed and for which disputes of civil nature are pending in the Civil Court, has no locus or right to seek variation under Sections 70 and 71 of the Act, 1976.
28. Thus, the authority under the Act 1976 has followed the procedure in accordance with the provisions of the Act. 1976 and Rules 1979 at every stage of declaration of the scheme, preparation of draft Page 47 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 scheme, sanctioning of the preliminary scheme and no error, irregularity or informality exists and further as stated earlier, in absence of any legal right under the Act, 1976 of the petitioner to request for variation in the scheme already sanctioned cannot be entertained. We find no merit in appeal and is hereby dismissed."
6.9 In view of the provisions of Section 2(xvi) of the said Act pertains to 'occupier' and (xviii) pertains to "owner", in the present case, the petitioners hold only an agreement sale and possession receipt, for which, no sale deed is executed and it cannot be said that the petitioners have any title or interest in view of the judgment of the Hon'ble Apex Court in the case of Yellapur Uma Maheswari and Anr. vs. Buddha Jagadheeswarwararao and Others reported in (2015) 16 SCC 787 and paras 15 and 36 are relevant. Therefore, it cannot be said that the authorities concerned have committed any error in deciding the objections.
6.10 Thus, the authority under the Act, 1976 has followed the procedure, in accordance with the provisions Page 48 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022 C/SCA/18890/2014 CAV JUDGMENT DATED: 21/09/2022 of the Town Planning Act, 1975 as well as under Rules of 1979 at every stage of declaration of the scheme.
Preparation of draft scheme, no error, irregularity or infirmity exists and as stated earlier in absence of any legal right under the Act, 1976, the petitioner cannot be permitted to create hindrances in process of implementation of the scheme. Therefore, I found that there is no perversity, arbitrariness or illegality committed by the authority concerned in the impugned order and there is no justifiable reason to interfere by exercising the powers under Section 226/227 of the Constitution of India, therefore, the present petition is found meritless.
7. In view of the above, the present petition is dismissed, with no order as to costs.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 49 of 49 Downloaded on : Wed Sep 21 23:12:44 IST 2022