Gujarat High Court
Surnarayan vs State on 25 February, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
Print
SCA/1582/2010 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1582 of 2010
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 ?
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 ?
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SURNARAYAN
CO-OPERATIVE HOUSING SOC.LTD THROUGH CHAIRMAN/ - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH GOVERNMENT PLEADER & 6 - Respondent(s)
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Appearance :
MR
GM JOSHI for
Petitioner(s) : 1,
MR NIKUNT RAVAL, ASST. GOVERNMENT PLEADER for
Respondent(s) : 1 - 2.
None for Respondent(s) : 3 -
7.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 25/02/2010
ORAL
JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate Writ, direction and/or order to declare Town Planning Scheme No.21 (Motera) in respect of Final Plot No.148 is bad in eye of law and consequently it is prayed to quash and set aside Town Planning Schme No.21 (Motera) qua the petitioner's property I.e. Final Plot No.148.
2. The petitioner is Cooperative Society situated on the land being Revenue Survey No.238-P. That the said land is included in the Town Planning Scheme No.21 (Motera) and under the same Survey No.238 has been given Original Plot No.234 and proposed Final Plot No.148. It appears that just adjacent to the petitioner there was another land bearing Survey No.237/2 and 237/1 which has been given Original Plot No.232 and 233 i.e. Final Plot No.145 and 146 which under the proposed Draft Town Planning is reserved for 'sale for residence'. It appears that under the Draft Town Planning Scheme there was 9 meter Town Planning Road in between original Survey No.238 (O.P. No.234) and land bearing Survey No.237/2 and 237/1 (i.e. O.P. No.232 and 233). That Draft Town Planning has been sanctioned by the State Government on 19.12.2003 and in the said sanctioned Draft Planning Scheme, petitioner's survey No.238 has been given O.P.234 and in lieu of said O.P.No.234, Final Plot No.148 has been allotted. As stated above, there was 9 meter Town Planning Road. That thereafter Preliminary Town Planning scheme has been prepared by the Town Planing Officer which has been sanctioned under section 65 of the Gujarat Town Planning and Urban Development Act . However, on the proposed Preliminary Town Planning Scheme reserved for 'sale for residence' on the land of Final Plot No.145 and 146 has been lifted. However, 9 meter Town Planning Road which was earmarked in the Draft Town Planning has been maintained with some modification in the design i.e. some curve at the end of the road. That for the purpose of taking possession of said 9 meter Town Planning Road, petitioner Society has been served with the notice under Section 68 read with Rule 33, Rule 48(A) of the Gujarat Town Planning and Urban Development Act ('the Act' for short) and petitioner is aggrieved by 9 meter Town Planning Road and Draft Planning Scheme, accordingly petitioner Society has preferred present Special Civil Application under Article 226 of the Constitution of India.
3. Mr.G.M.Joshi, learned Advocate appearing for the petitioner has submitted that there was no requirement of 9 meter Town Planning Road as provided in Draft Town Planning Scheme sanctioned by the State Government as initially same was provided because there was reservation of 'sale for residence' on the Final Plot No.145 and 146. However, reservation of 'sale for residence' on the land bearing Final Plot No.145 and 146 has been lifted and/or removed. Therefore, it is submitted that Draft Town Planning Scheme No.21 (Motera) to that extent and with respect to Final Plot No.148 is illegal and deserves to be quashed and set aside. Mr.Joshi, learned Advocate for the petitioner has made submission with respect to some triangular portion at the rear portion of land bearing Survey No.238 touching Original Plot No.237 which is likely to form part of Final Plot No.150 (out of some portion of land bearing Survey No.238 Original Plot No.234) by submitting that said land cannot be included in Final Plot No.150. Therefore, it is requested to allow present Special Civil Application.
4. Petition is opposed by Mr.Chhaya, learned Advocate appearing for the respondent Corporation. It is submitted that under the Draft Town Planning Scheme there was already 9 meter Town Planning Road which is continued on sanctioning of the same and while preparing Preliminary Town Planning scheme. However, at the rear end of the road only curve is provided. It is submitted that at the relevant time petitioner has never objected to providing 9 meter Town Planning road from the land bearing Survey No.238. It is submitted that so far as contention on behalf of the petitioner that there was no requirement of 9 meter Town Planning road in question is concerned, it is ultimately for the appropriate authority to consider the same whether 9 meter Town Planning Road is required or not and on that ground Town Planning Scheme cannot be set aside. It is submitted that at the relevant time when there was proposed 9 meter Town Planning road under the Draft Town Planning scheme, petitioner never raised any objection and therefore, after sanction by the State Government it is not open for the petitioner now to challenge the same. It is submitted that in exercise of powers under section 48(A) of the Act, appropriate authority can take over possession of the said land which is needed for public road as if Draft Scheme is Preliminary Town Planning Scheme and is sanctioned under Section 65 of the Act, therefore, petitioner has been served with notice under Section 68 read with Rule 33 of the Rules for taking possession of that portion of land which is required for 9 meter town planing road which is sanctioned as per Draft Planning Scheme, which is legal and in consonance with the provisions of the Act. Therefore, it is requested to dismiss present Special Civil Application.
4.1. It is further submitted by Mr.Chhaya, learned Advocate for the respondent Corporation that so far as dispute with respect to triangular portion of land which is going to Final Plot No.150 (which was forming part of Survey No.238) is concerned, at present that Scheme is at Preliminary stage pending with the State Government for sanction under section 65 of the Act and therefore, petitioner still submit objections with respect to same which will be considered by the State Government at the relevant time while sanctioning the Scheme under Section 65 of the Act and therefore, it is submitted that to that extent challenging Town Planning Scheme No.21 (Motera) with respect to that portion of land, petition is pre-mature. Therefore, it is requested to dismiss present Special Civil Application.
5. Heard the learned Advocates appearing on behalf of the respective parties at length.
6. At the outset, it is required to be noted that Draft Town Planning Scheme No.21 (Motera) has been sanctioned by the State Government and that under the Draft Town Planning Scheme sanctioned by the State Government there is already 9 meter Town Planning road in question which the petitioner is now objecting to. It is to be noted that even at the draft stage there was already a proposal for 9 meter town planning road and suggestions and objections were invited and the petitioner did not raise any objection at the relevant time with respect to providing 9 meter town planning road. Thereafter, Draft Town Planning Scheme has been sanctioned by State Government by providing 9 meter town planning road. There is only slight minor change and modification in the 9 meter Town Planning road and at the end of the road some curve is provided, otherwise there is no change in the proposed Draft Town Planning Scheme. Under section 48 of the Act, after Draft Town Planning Scheme is sanctioned, appropriate authority can take over possession of same which is needed for public road as if Draft Town Planning Scheme has become final and that is how appropriate authority has issued notice under Section 68 of the Act read with Rule 33, Section 48(A) of the Act directing the petitioner to hand over land which is needed for 9 meter town planning road, which cannot be said to be arbitrary, illegal and de-hors provisions of the Act.
7. Now so far as contention on behalf of the petitioner that there is no requirement of 9 meter town planning road in question is concerned, it is ultimately for the appropriate authority and the State Government to consider whether there is requirement of 9 meter town planning road or not. Neither petitioner nor Court can substitute decision with respect to requirement of 9 meter town planning road.
8. Now so far as dispute with respect to triangular portion at the rear portion of land bearing Survey No.238 which is going through Final Plot No.150 is concerned, it is to be noted that so far that question is concerned, Scheme is at present at preliminary stage pending with the State Government for sanction under section 65 of the Act. It is reported that petitioner has already submitted some objections before the Town Planning Officer and therefore, Town Planning Officer is required to consider the same and send objections to the State Government along with preliminary scheme submitted by them and same is required to be considered by the State Government while taking final decision on the said Town Planning Scheme under section 65 of the Act. It is observed that while taking final decision on the said Town Planning Scheme under section 65 of the Act, State Government is bound to consider said objections.
9. In view of above, there is no substance in the present Special Civil Application which deserves to be dismissed and accordingly it is dismissed.
[M.R.Shah,J.] satish Top