Gujarat High Court
Gyaneshwar Park Co-Op Housing Society ... vs Ahmedabad Urban Development Authority on 28 February, 2025
NEUTRAL CITATION
C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6684 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
No
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GYANESHWAR PARK CO-OP HOUSING SOCIETY LTD
Versus
AHMEDABAD URBAN DEVELOPMENT AUTHORITY & ANR.
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Appearance:
MR JITENDRA M. MALKAN FOR MR VISMAY V MALKAN(9284) for the
Petitioner(s) No. 1
VATSAL M PARIKH(9340) for the Petitioner(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2
MRS FALGUNI D PATEL(2053) for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 28/02/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Deep Vyas waives service of Notice on behalf of respondent No.2- Ahmedabad Municipal Corporation.
2. This petition is filed with the following prayers:
"a. Admit, hear and allow this petition.Page 1 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025
NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined b. Quash and set aside impugned action of the respondent authorities in widening of the road shown in part plan of draft town planning scheme No.65 which is at Annexure-I to the petition.
c. Quash and set aside order dated 18.11.2016, which is now at Annexure-G to the petition.
d. Direct the respondents to amend draft town planning scheme No.65 inasmuch as widening of road in question is concerned as it may deem fit in interest of justice.
e. Pending admission and final hearing of the petition, stay operation and implementation of the draft town planning scheme No.65 of Jagatpur-Chenpur-Tragad- Chandkheda-Ranip inasmuch as widening of the road at Annexure-I is concerned.
f. Grant any other and further relief as may be deemed fit in the interest of justice."
3. Heard learned advocate Mr.Jitendra M. Malkan for the petitioner and learned advocate Mr.Deep Vyas for respondent No.2.
4. Learned advocate Mr.Malkan for the petitioner submitted that action taken by respondent for implementation of Draft Town Planning Scheme No.65 at Annexure "I" (Page-21) is erroneous because the said decision is without application of mind and therefore, required to be quashed and set aside.
4.1 Referring to the facts stated in the petition, learned Page 2 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025 NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined advocate Mr.Malkan pointed out that the petitioner herein is Cooperative Housing Society registered under the provisions of the Cooperative Societies Act and having residential houses on the said land since last more than 40 years. On account of decision of respondents State of sanctioning Draft Town Planning Scheme No.65, Jagatpur-Chenpur-Tragad-Chandkheda- Ranip (hereinafter referred to as "Scheme No.65") by Notification dated 17.12.2014, the petitioner-society passed resolution on 11.03.2017. It was resolved that decision of the State of sanctioning draft Town Planning Scheme No.65, adversely affect the members of the petitioner society. The society therefore by its majority members had decided to represent and to file objections before the authority against Draft Town Planning Scheme No.65. It was case of the petitioner-society in the objections/reply that all members have right under the constitution of India to hold the property and by Draft Town Planning Scheme in question, the right of petitioners of holding property has been taken away and therefore, the authorities may consider having alternative location for Draft Town Planning Scheme No.65 by quashing of Notification dated 17.12.2014.
4.2 Learned advocate Mr.Malkan pointed out that the resolution dated 11.03.2017 is at Annexure "A" (Page-8). Meanwhile, the petitioner received a Notice dated 31.08.2016 Page 3 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025 NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined (Annexure "C" - Page-12) whereby the petitioner was provided opportunity to raise objections by giving personal hearing on 08.09.2016. Notice dated 31.08.2016, was followed by one more notice dated 27.09.2016, providing opportunity of hearing on 06.10.2016. The petitioner accordingly raised objections. Learned advocate submitted that without considering the objections, an order dated 18.11.2016 (Annexure "G"- Page-
17) was passed under section 68 of the Town Planning Act read with Rule 33 of the Town Planning Rules. Learned advocate therefore submitted that the said order deserves to be quashed and set aside on the following grounds:
(a) Draft Town Planning Scheme No.65 is sanctioned without giving any opportunity to the petitioners to represent their case. Reply on behalf of respondent no.2-corporation, refers to owners meeting, however, the petitioner was not informed about the owners meeting. If hearing would have been provided, the petitioner, ought to have explained that 30 feet widening of road is not required as no purpose would get served by widening of road because the road approaches the dead end.
(b) The members of petitioner-society are residing on the subject premises since last more than 40 years. Pursuant to notice dated 27.09.2016, the society made representation, Page 4 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025 NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined however, the same was not considered by the respondent authority.
(c) Referring to para-9 of the petition, learned advocate Mr.Malkan submitted that the petitioner had obtained Town Planning Scheme Map from Ahmedabad Urban Development Authority and from the plan it is evident that development of 30 feet road at the proposed site, is not required. If the road as per proposed plan is developed, it would shift the alignment and proposed road is also contrary to the procedure laid down by the Indian Road Congress.
(d) Further, 30 feet road is planned in an area of minimal traffic and therefore, order under Section 68 of the Town Planning Act read with Rule 33 of the Town Planning Rules is passed without application of mind.
(e) Learned advocate submitted that if Town Planning Scheme is permitted to be implemented, the petitioners would lose their residences and therefore, till final decision is taken by the State Government, as prayed for in the petition for variation of the Town Planning Scheme No.65, the petitioners may not be dispossessed from their premises. Learned advocate therefore submitted that the petition deserves to be allowed.
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5. Opposing the petition, learned advocate Mr.Dhaval Vyas for respondent No.2 submitted that following dates would be necessary:
5.1 Referring to reply filed on behalf of respondent no.2, learned advocate submitted that intention of Draft Town Planning Scheme No.65 was declared on 14.08.2012 and pursuant thereto, the owners meeting was held on 22.04.2013.
Thereafter, after following the due procedure prescribed under the Act, draft Town Planning Scheme was prepared and submitted to the State Government. State Government thereafter sanctioned the said Scheme by Notification dated 17.12.2014. Upon sanctioning of the Scheme by the State Government, once again the petitioners were put to notice by communication dated 31.08.2016.
5.2 Vide said Notice, the petitioner was provided with opportunity to raise the objections and personal hearing on 08.09.2016. This aspect is evident from the resolution passed by the society dated 11.03.2017. The said resolution refers to State Government Notification, as also intention of Draft Town Planning Scheme. Pursuant to the Notice dated 31.08.2016, the petitioners filed their objections on 04.09.2016. Thereafter, one more Notice dated 27.09.2016 was served upon the petitioner wherein, one more opportunity of hearing was given on Page 6 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025 NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined 06.10.2016. In response thereto, the petitioner preferred representation on 06.10.2016 raising their objections. After considering the objections of the petitioner, an order dated 18.11.2016 was passed under section 68 of Act read with Rule 33 in Town Planning Rules. Therefore, procedure contemplated under the provisions of the Act has been followed. Learned advocate by placing reliance on the averments made in the affidavit, pointed out that the Scheme contains development of road towards Chandkheda Railway Station. End of road have 12 feet width, abetting to the land in question. Therefore, the development of road is necessary for implementation of the said Scheme.
5.3 Further, once the procedure is followed the scope of judicial interference is minimal because upon sanctioning of the Draft Town Planning Scheme, the land would vest with the respondent corporation free from all encumbrances as per section 48-A of the Act. Once the land vests with the Government, the Scheme is required to be implemented for the purpose of clause (c), (f), (g), (h) of sub-section (3) of Section 40 of the Act and therefore, Notice under section 68 of the Town Planning Act read with Rule 33 of the Town Planning Rules was issued.
5.4 In this case the scheme is to provide infrastructure Page 7 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025 NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined facility, which is required for public purpose as provided in clause (e), (f), (g), (h) of sub-section (3) of Section 40 of the Act. Moreover, what is required at this stage is only area, which is required for development of road. Rest of the area is not taken at this stage because the Town Planning Scheme No.65 is required as per section 40(3) of the Act.
5.5 Further, for implementation of scheme major part required is compound wall and some margin areas of two units of the petitioner society and therefore, contention that entire society is required to be demolished, is contrary to the facts.
5.6 Learned advocate relied upon the decision of this Court in the case of Ramanbhai Hargovinddas Limbachia & Ors. V/s. State of Gujarat & Ors. reported in 2016(3) SCC 2695 to submit that as per Section 48A of the TP Act, where Draft Scheme has been sanctioned by the State Government under section 48(2), all lands required by appropriate authority for the purpose referred in clause (e), (f), (g), (h) of sub-section (3) of Section 40 of the TP Act, shall vest absolutely in the appropriate authority free from all encumbrances and any orders/ notices passed in exercise of powers under sections 48A, 67 and 68 of the TP Act, cannot be said to be illegal and/or contrary to the provisions of the TP Act. Therefore, there is no illegality, as alleged.
Page 8 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined 5.7 Further, it is open for the petitioner to lodge its claim under section 82 of the Act for compensation or any other alternate land, once appointment of Town Planning Officer is done. Learned Advocate submitted that now grievance of the petitioner would lie before Town Planning Officer and therefore, submission of the petitioner that they are remediless, is not correct.
6. Considered the submissions and decision relied upon. Upon revisitation of facts, it is noticed that prior to sanctioning of Draft Town Planning Scheme by Notification dated 17.12.2014, the owners meeting was called on 22.04.2013. However, no record is available to justify the petitioner participation in the owners' meeting. Aggrieved by the said sanctioning of the Scheme by Notification dated 17.12.2014, the petitioner passed resolution in general body meeting to raise their grievance before the authority and accordingly, objections were raised. Notice given to the petitioner dated 31.08.2016 refers to hearing given on 08.09.2016. In response thereto, the petitioners raised their objections on 04.09.2016 (Annexure "D"- Page-14). In the said objections, the petitioner raised grievance about their non participation earlier.
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7. Thereafter, one more Notice dated 27.09.2016 was issued giving an opportunity of hearing to the petitioner on 06.10.2016. The petitioner appears to have raised their objections once again on 06.10.2016. From the objections dated 06.10.2016, it is noticed that it was case of the petitioner that no justifiable reasons were available for sanctioning of the Scheme because it would affect the houses of the members of the society. Widening of road not possible, on account of existing railway track was also pleaded.
8. Thereafter, an order dated 18.11.2016 was passed under section 68 read with Rule 33 of the Town Planning Act with Rules. The said order records sanctioning of the Draft Town Planning Scheme, as also provision of Section 40(3) and the purpose for which the Scheme is sanctioned. The order dated 18.11.2016 refers to representation made by Chairman/ Secretary of the petitioner society and their objections. Therefore, contention that the petitioners were never given any opportunity of hearing and they were not heard, in the opinion of this Court, is contrary to the documents on record. The order also records contention of the petitioner with regard to existing railway track. Therefore, contention that the scheme was sanctioned without application of mind, does not merit acceptance.
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9. Further, as held by this court, in the case of Ramanbhai Hargovinddas Limbachia & Ors. (supra), whether 30 feet road is required or 12 feet existing road is sufficient, is not within the domain of the petitioner or the court. Widening of the road required or otherwise needs to be left to the wisdom of the expert body and with the appropriate authority, who has developed the Town Planning Scheme which has been sanctioned by the State authority. At this stage, it would be apposite to refer to following paragraphs, of the decision in the case of Ramanbhai Hargovinddas Limbachia & Ors. (supra) :
"3.1. Now, therefore, so far as those who are in occupation and/or purchased the plots/lands after the draft Town Planning Scheme came to be sanctioned, they have no legal, valid title, and therefore, they cannot make any grievance when the sanctioned draft Town Planning Scheme is being sanctioned considering Sec. 48 of the Town Planning Act qua the land which is required for 36 meter Town Planning Road. As per Sec. 48A of the Town Planning Act where a draft scheme has been sanctioned by the State Government under sub-sec. (2) of Sec. 48, all lands required by the appropriate Authority for the purposes specified in clauses (e), (f), (g) or (h) of sub-sec. (3) of Sec. 40 shall vest absolutely in the appropriate Authority free from all encumbrances.
3.2. As observed hereinabove, even as per Sec. 49 of the Town Planning Act on or after the date on which a draft scheme is published on Sec. 41, no person shall, within the area included in the scheme, carry out any development unless such person has applied for and Page 11 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025 NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined obtained the necessary permission for doing so from the appropriate authority. Thus, the date on which the draft scheme is published under Sec. 41 of the Town Planning Act, restriction on the development of land shall apply, which would mean that when the land in question is earmarked for the Town Planning Road purpose, the same cannot be used for any other purpose.
3.3. Considering Sec. 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 Secs. 68 and 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 Sec. 48A(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 Sec. 48(2) of the Town Planning Act, and thereafter, when the impugned orders are passed in exercise of powers under Secs. 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 Sec. 48A of the Town Planning Act. Under the circumstances, the learned Single Judge has rightly dismissed the main Special Civil Application.
3.4. Now, so far as the submission on behalf of the petitioners that there is no justification of having 36 meter road as the present road, which is available, cater the needs of the traffic is concerned, it is not either for the petitioners and/or even for the Court to consider whether there is any justification of having 36 Page 12 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025 NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined meter road or not. Whether there is a need of 36 meter road or not is left to the wisdom of the expert body and the appropriate Authority considering the public interest.
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 in Secs. 48A, 67 and 68 of the Town Planning Act and Rule 33 of the Town Planning Rules.
3.6. Now, so far as the submission on behalf of the petitioners that no speaking/reasoned order has been passed is concerned, on considering the impugned orders it cannot be said that the impugned orders deserve to be quashed and set aside on the aforesaid ground. The objections raised by the petitioners have been considered, and thereafter, the impugned orders are passed which, as observed hereinabove, are absolutely in consonance with the provisions of the Town Planning Act and Town Planning Rules more particularly Secs. 48A, 67 and 68 and Rule 33.
3.7. In view of the above and for the reasons stated above, we are in complete agreement with the view taken by the learned Single Judge dismissing the Page 13 of 14 Uploaded by DIPTI PATEL(HC00191) on Mon Mar 03 2025 Downloaded on : Mon Mar 03 22:26:57 IST 2025 NEUTRAL CITATION C/SCA/6684/2017 JUDGMENT DATED: 28/02/2025 undefined petition. We see no reason to interfere with the impugned judgment and order passed by the learned Single Judge in exercise of the appellate jurisdiction. We entirely agree with the view taken by the learned Single Judge and we confirm the same."
10. Moreover, it cannot be ignored that the Town Planning Scheme under challenge is at draft stage. Appointment of Town Planning Officer is made and as per provisions of the Act, objections in relation of grant of compensation or alternative land shall be considered by Town Planning Officer before taking decision to finalize Draft Town Planning Scheme.
11. In view of the above, when the Scheme was sanctioned and the same is required to be implemented as referred in Section 40(3) of the Town Planning and Urban Development Act and procedure being followed by the respondent authority, scope of judicial review with regard to contention raised by the petitioner being minimal, this petition does not merit acceptance.
12. In view of forgoing reasons, there is no merits in this petition and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. No order as to costs.
sd/-
(MAUNA M. BHATT,J) DIPTI PATEL...
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