Gujarat High Court
Navalsinh Bhavanji Vaghela vs State Of Gujarat on 29 March, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/6066/2019 ORDER DATED: 29/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6066 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19835 of 2021
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NAVALSINH BHAVANJI VAGHELA
Versus
STATE OF GUJARAT
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Appearance in SCA No.6066 of 2019
MR KV SHELAT(834) for the Petitioners
MR AYAAN PATEL, AGP for Respondent No. 1
MR AUM M KOTWAL(7320) for Respondent Nos. 2 and 3
NOTICE SERVED BY DS for the Respondent No. 4
Appearance in SCA No.19835 of 2021
MR KAUSHAL D PANDYA for the Petitioners
MR AYAAN PATEL, AGP for Respondent No. 1
MR SATYAM Y CHHAYA for Respondent Nos. 2 and 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 29/03/2022
ORAL ORDER
1. Both these petitions are inter connected and as result of SCA No.6066 of 2019 would directly affect the outcome of SCA No.19835 of 2021, both these petitions are taken up for joint hearing. it is infact the case of the petitioner in SCA No.19835 of 2021 that the filing of this petition was necessitated due to the filing of and pendency of the SCA No. 6066 of 2019.
2. SCA No.6066 of 2019 is filed seeking writ to hold that TP scheme No.7 (Sargasan-Kudasan-Por) be declared as vitiated insofar as it concerns survey No.161, Khata No.32, admeasuring 3300 sq. mtr. The petitioners have also prayed to hold the Page 1 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022 C/SCA/6066/2019 ORDER DATED: 29/03/2022 proposed action of the respondent authorities for threatening immediate dispossession and demolition from the subject plot without issuance of notice as contemplated under the provisions of the Gujarat Town Planning Act and the Gujarat Town Planning Rules. The petitioners have also prayed that the respondent authorities may hand over peaceful possession of the proportionate share of the petitioner admeasuring 2145 sq. mtr. against Final Plot No.20 of TP scheme No.7 (Sargasan-Kudasan-Por). 2.1 SCA No.19835 of 2021 is filed seeking direction to implement TP scheme No.7 (Sargasan-Kudasan-Por) by developing 12 mtr. road adjacent to Final Plot No.62/2 of the petitioner. 2.2 The implementation of TP scheme No.7 is subject matter of SCA No.6066 of 2019, wherein this Court passed order on 09.04.2019 directing parties to maintain status quo regarding property in question (on survey No.161, Final Plot No.20 of TP scheme No.7 (Sargasan-Kudasan-Por).
3. Essentially, case of the petitioners of SCA No.6066 of 2019 is against TP scheme, which according to the petitioners has been finalized without following due process of law and though the names of the petitioners were very much in the revenue record, the respondent authorities have not followed the procedure prescribed before finalizing the TP scheme.
4. Learned Advocate for the petitioners submitted that Page 2 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022 C/SCA/6066/2019 ORDER DATED: 29/03/2022 survey No.161 paiki, Khata No.32, admeasuring 3300 sq. mtr. Was part of original survey No.161, which belonged to forefathers of the petitioners. The said plot of land came to be divided amongst family members and the petitioners were co-owners of the aforesaid plot of land. It is submitted that though the names of the petitioners were reflected in the revenue record, the respondent authorities have never issued any notice under Rule 17 of the Gujarat Town Planning and Urban Development Rules before framing of the draft town planning scheme and sanctioning of the same.
4.1 It is submitted that the petitioners, in connection with the aforesaid survey number, have sent communication to the respondent authorities for issuing any communication or notice under the provisions of the Town Planning Act, specifically to the petitioners only. However, till date, no such notice has been received by the petitioners.
4.2 It is submitted that it is incumbent under the provisions of the Town Planning Act for issuing notice and calling for meeting of the owners and landholders who are to be affected by the TP scheme, but in the present case, no such meeting was convened nor the petitioner was called for such meeting. 4.3 It is submitted that the petitioners of their own made several applications and also visited office of the Town Planner Page 3 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022 C/SCA/6066/2019 ORDER DATED: 29/03/2022 raising objections to the scheme, but in response, he received letter dated 16.04.2018 informing that the plot of the petitioners is affected by passing of 12 mtr. TP road, against which also, the petitioners have made representation immediately. However, to this also, there has been no reply from the respondent authorities.
5. It is lastly submitted that the petitioners have been allotted part in Final Plot No.20, admeasuring 2145 sq. mtr., against out of total area of Final Plot No.20 being 7098 sq. mtr. However, out of said Final Plot No.20, the petitioners have not been handed over their share of 2145 sq. mtr. in Final Plot No.20 and to that extent, the petitioners have made representations. Learned Advocate for the petitioners drew attention of this Court to letter dated 20.04.2018 requesting for separate "F" form as the petitioners claimed to be independent owners. However, to that also, the petitioners have not received any response. Lastly, the petitioners made a detailed representation on 31.07.2018 raising all the grievances before the Town Planning Officer, to which also, the petitioners have not received any reply.
6. As against this, learned Advocate for the respondent- Corporation submitted that the notice under Rule 26(9) was sent to the petitioners. Communication dated 13.02.2019 was also sent to the petitioners. In fact, the respondent authorities had sent notice dated 10.01.2018 to the petitioners and therefore, case of the petitioners that the petitioners were unaware of the town planning Page 4 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022 C/SCA/6066/2019 ORDER DATED: 29/03/2022 scheme cannot be accepted.
6.1 Learned Advocate for the respondent-Corporation has drawn attention of this Court to notice dated 09.12.2014, wherein names of the petitioners are reflected and such document holds signature of petitioner No.2 to indicate that the petitioners were made aware of the proceedings under the town planning scheme. Learned Advocate submitted that the respondent-Corporation has complied with the requirements of the provisions of the Town Planning Act, where intention to frame town planning scheme was declared on 07.07.2003 and notification of draft town planning scheme was issued on 20.12.2010. The notification for appointing Town Planning Officer was published on 29.12.2011 and the preliminary scheme was submitted to the State Government for sanction by notification dated 15.05.2017, pursuant to which, the town planning scheme has now become part of the Act and therefore, prayer of the petitioners cannot be entertained simply on the ground that the petitioners have not been served with the notice by the respondent authorities.
7. Having considered the rival submissions of learned Advocates for the parties and having perused documents on record, it appears that the petitioners are co-owners of an ancestral land bearing survey No.161 paiki of village Sargasan, which was covered under town planning scheme No.7 of (Sargasan-Kudasan-
Por). From land admeasuring 6203 sq. mtr. in Khata No.32, Page 5 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022 C/SCA/6066/2019 ORDER DATED: 29/03/2022
approximately, 2900 sq. mtr. of land was sold off to third party by registered sale deed on 16.12.1968 and thereafter, land admeasuring 3300 sq. mtr. has continued to be in occupation of the family of the petitioners, where petitioners are co-owners.
8. From the record placed before this Court, it appears that the notification was issued on 20.12.2010 declaring intention of framing draft TP scheme, Gandhinagar-7 of (Sargasan-Kudasan- Por). Thereafter, vide notification dated 15.05.2017, preliminary TP scheme No.7 (Sargasan-Kudasan-Por) was sanctioned with modification and finally, by notification dated 07.11.2019, final TP scheme was sanctioned.
9. In view of operation of law, after the TP scheme being sanctioned, has become part of the Act. In view of this, merely because the petitioners claim that the petitioners have not been served with the notice, the TP scheme cannot be held to have been vitiated qua plot of land belonging to the petitioners.
10. The stages prescribed under the Town Planning Act clearly indicate step-by-step process, which involves participation of those who are affected by the scheme. The record produced by the respondent-Corporation would indicate that the notice has been issued on 12.09.2012 to the family members of the petitioners and also reflecting publication in the local newspapers, viz. Divya Bhaskar and News Line on 30.12.2011. Similarly, notice dated Page 6 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022 C/SCA/6066/2019 ORDER DATED: 29/03/2022 09.12.2014 is also issued to the family members as well as to the petitioners calling upon them to remain present before the Town Planning Officer for any objection to the draft scheme. The documents produced at Annexure-6 by the respondent-Corporation would indicate signature of one of the petitioners so as to suggest that the petitioners have been served with such notice.
11. During the course of arguments, part planning of the TP scheme sanctioned was placed on record and from the TP scheme, it appears that the petitioners, who are co-owners in Final Plot No.20 and which had survey N.161, from which Final Plot No.179 has been carved out for the Neighbourhood Centre adjacent to which is a 12 mtr. road connecting to "Kh" road to SG Highway. It has been pointed out that on account of the petition filed by the petitioners, entire road, but for the portion which the petitioners claim to be in occupation, has been developed. The portion which the petitioners claim to be in occupation has remained undeveloped and therefore, TP scheme has not been proceeded any further.
12. Insofar as submission of learned Advocate for the petitioners to the extent of demarcating final plot for allotting proportionate share to the petitioners. The Town Planning Act has provided for a procedure to exercise powers under Section 67(A), apparently, the petitioners have already represented to the respondent-Corporation, which is an independent case, which the Page 7 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022 C/SCA/6066/2019 ORDER DATED: 29/03/2022 petitioners can pursue with the respondent-Corporation.
13. However, for the issue with regard to taking over possession of the plot of land from the petitioners, the corporation is duty bound to comply with the requirements of the provisions of the Town Planning Act, particularly section 68. even when the corporation is enforcing the town planning scheme. However, in the opinion of the Court, from the grounds mentioned in the petition, no case is made out to interfere with the TP scheme, which has now become final and part of the Act. To that extent, the prayer regarding setting aside the TP scheme, no case is made out. In so far as claim of the petitioners regarding demarcating their share in the Final Plot, the respondents are expected to act in accordance with the provisions of law. In this view of the matter the court leaves it open for the petitioner to make a fresh application if not made so far, for demarcation of the share of the petitioner in the final plot jointly given to the petitioners and other original co owners. it is open for the petitioner to make such application within a week from today and the respondent corporation may intimate the out come to the petitioner within period of one month thereof. considering the fact that this Court while issuing had protected the petitioner therefore till such decision the parties will maintain status quo.
14. In view of the aforesaid, SCA No.6066 of 2019 stands dismissed. Notice is discharged. Interim relief granted earlier Page 8 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022 C/SCA/6066/2019 ORDER DATED: 29/03/2022 stands vacated. No order as to costs.
15. In view of the order passed in SCA No.6066 of 2019, no separate order is required to be passed in SCA No.19835 of 2021. It is clarified that though this court has ordered status quo qua the petitioners plot but no stay now operates against implementation of TP scheme No.7 (Sargasan-Kudasan-Por). The same also stands disposed of accordingly.
(A.Y. KOGJE, J) SHITOLE Page 9 of 9 Downloaded on : Tue Apr 05 20:10:44 IST 2022