Gujarat High Court
Valjibhai Jakshibhai Desai vs Rameshbhai Kantilal Patel on 5 February, 2019
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/LPA/983/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 983 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 16167 of 2015
With
CIVIL APPLICATION NO. 1 of 2017
With
CIVIL APPLICATION NO. 2 of 2016
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VALJIBHAIJAKSHIBHAI DESAI
Versus
RAMESHBHAI KANTILAL PATEL
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Appearance:
MR AM PAREKH(562) for the PETITIONER(s) No. 1
MR BHARAT T RAO(697) for the RESPONDENT(s) No. 1
MR DEEP D VYAS(990) for the RESPONDENT(s) No. 2-4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
and
HONOURABLE MR.JUSTICE V. B. MAYANI
Date : 05/02/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) Heard Mr. A.M.Parekh, learned counsel for the appellant, Mr. Bharat T. Rao, learned counsel for respondent No.1original petitioner and Mr. D.D.Vyas, learned counsel for respondent Nos.2 to 4.
2. Learned counsel for the appellant has raised one main contention that even as per the earlier order passed by this Court in Special Civil Application No.2032/1999 and the said order having been relied upon by Division Bench of this Court in its order dated 14.11.2017 passed in this proceedings, the respondent Corporation is trying to implement the Page 1 of 9 C/LPA/983/2016 ORDER scheme without adhering to the directions issued by this Court. It was also contended that in the writ petition, the petitioner was not made a party and there is suppression of the fact that earlier the petition was filed by the appellant herein, wherein certain directions were issued even though respondent No.1 - original petitioner was a party to that proceedings. It was also contended that even filing of the civil suit is also not stated in the petition.
3. Mr. B.T.Rao, learned counsel for respondent No.1 and Mr. Deep D.Vyas, learned counsel for respondent Nos.2 to 4 have supported the impugned order. Learned counsel for respondent Nos.2 to 4 has submitted that as per the earlier directions, the respondent Corporation has followed the procedure and the appellant has been offered an alternative accommodation as stated in communication dated 29.09.2016.
No other or further submissions have been made by learned counsel appearing for the respective parties.
4. Having heard learned counsel for the parties and on perusal of the record, it is an admitted position that preliminary Town Planing Scheme No.23, Sabarmati, Ahmedabad, is sanctioned under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act" for short) on 22.09.1983 and final scheme has also sanctioned on 09.01.1984. The land in Page 2 of 9 C/LPA/983/2016 ORDER question has been allotted Original Plot No.38 part and in lieu of the same, it has been allotted Final Plot No.195 in the said sanctioned Town Planning Scheme. Record also indicates that after the orders were passed by learned Single Judge of this Court, the appellant has been issued a notice as provided under Section 68 of the Act read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules" for short).
5. This Court (Coram : M.R.Shah, J., as his Lordships the then was) in earlier petition filed by the present appellant being Special Civil Application No.2032/1999 permitted the petitioners, wherein the appellant was one of the petitioners, to withdraw the petition and upon statement being made by learned counsel for the petitioners in the said petition as well as learned counsel for the Corporation, gave following direction in paras 4 and 5, which reads as under:
4. In that view of the matter, the Corporation is directed to give alternative site to the petitioners as per their own policy and as per the order dated 03031999.
For that purpose, the petitioners are directed to approach the Corporation within a period of 02 (two) weeks from today. The Corporation will show them alternative site and thereafter after completing all the necessary formalities the Corporation will hand over alternative site to the petitioners within a period of 08 (eight) weeks thereafter.
5. On giving the possession of the alternative site the petitioners are directed to hand over vacant and peaceful possession of the land which Page 3 of 9 C/LPA/983/2016 ORDER is occupied by them, which is forming Town Planning Scheme, to the Corporation immediately and on getting the possession of the land in question from the petitioners, the respondent Corporation is directed to hand over the possession which is to be allotted to the respondent Nos.4 to 10 immediately.
6. It appears from the record that even after the aforesaid order was passed on 11.08.2004, nothing was done by the Ahmedabad Municipal Corporation. Therefore, respondent No.1 approached this Court by way of filing Special Civil Application No.16167/2015 wherein respondent No.1 prayed as under:
(A) To issue writ of mandamus or any other appropriate writ, order or direction by directing the respondent corporation to implement the Town Planning Scheme No.23 Acher and to direct the respondent corporation authorities to hand over the peaceful, vacant and encroachment free plot i.e. Final Plot No.195 admeasuring 465 sq.mtrs. Of Town Planning Scheme No.23 Acre, Sabarmati, Ahmedabad for the reasons stated in the memo of the petition;
(B) Pending admission, hearing and final disposal of the above Special Civil Application, be pleased to direct the respondents, their agents, employees, servants to remove the encroachment and hand over the peaceful, vacant and encroachment free plot i.e. Final Plot No.195 admeasuring 465 sq.mtrs. Of Town Planning Scheme No.23 Acre, Sabarmati, Ahmedabad to the petitioner, for the reasons stated in the memo of the petition, in the interest of justice."
7. This Court (Coram : A.J.Desai, J.) gave following directions while partly allowing the petition, which reads as under:
7. In view of a considerable long time and considering the decision rendered by Hon'ble Supreme Court in the case of Municipal Corporation of Greater Bombay V/s. The Advance Builders (India) Pvt. Ltd. reported in AIR 1972 SC 793 as well as in the case of Amarsinh Shanaji Thakore V/s. State of Gujarat reported in (2004)7 G.H.J. 127, I am of the opinion that the following order would meet the end Page 4 of 9 C/LPA/983/2016 ORDER of justice:
[i] The implementing authority The Ahmedabad Municipal Corporation is hereby directed to implement the scheme in accordance with law as expeditiously as possible latest by 30.09.2016."
8. The fact remains that Town Planning Scheme is sanctioned, as observed hereinabove, since 1993 and as per Section 67 (b) of the Act, rights of all the parties are crystallized in all preliminary schemes having been sanctioned. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of The Municipal Corporation for Greater Bombay and Anr. Vs. The Advance Builders (India) Pvt. Ltd. and Ors., reported in AIR 1972 (SC) 793, wherein the Apex Court has observed thus:
8. It is not necessary to go through the several provisions of the Town Planning Act. There can be no doubt that the Corporation, as the local authority, is wholly responsible for the preparation and implementation of every development plan. The preamble shows that the Town Planning Act, 1954, which was intended to be a consolidating and amending Act relating to town planning, was enacted with a view to ensure that Town Planning Schemes are made in a proper manner and their execution is made effective. It was, therefore, necessary to provide that the local authority shall prepare a development plan for the entire area within its jurisdiction. By Section 3 of the Act, the local authority is required to carry out a survey of the area within its jurisdiction within a certain time and publish a development plan. In due course, such a development plan is sanctioned by the Government, but, in the meantime, by Section 12 of the Act, stringent restrictions are placed on the property owners in the matter of development of or construction on their private properties as soon as the local authority declares its intention to prepare a development plan. After the development plan is finally sanctioned by the Government, the next step is for the local authority to make one or more Town Planning Schemes as provided in Page 5 of 9 C/LPA/983/2016 ORDER Section 18. The rest of the Act is mostly concerned with the preparation of the Town Planning Schemes and S. 29 (1) (a) provides that, after the local authority has declared its intention to make a scheme under S.22, no person shall, within the area included in the scheme, erect or proceed with any building or work or remove, pull down, alter, make additions to, or make any substantial repair to any building, part of a building a compound wall or any drainage work or remove any earth, stone or material, or sub divide any land, or change the user of any land or building unless such person has applied for and obtained the necessary permission of the local authority. These restrictions, though very stringent, are obviously in the interest of the preparation of the Town Planning Scheme, because, if structures come up when the scheme is being prepared, the whole object of town planning will be frustrated. The Arbitrator appointed under the Scheme has to lay out the roads, the drains and make provision for public places such as gardens, hospitals and the like and, if private owners start erecting structures of more or less permanent nature the cost of the Scheme might become prohibitive and the Scheme itself will flounder. Such is the importance of the Final Scheme as sanctioned by the Government that, under S. 51 (3), the Town Planning Scheme has the same effect as if it were enacted in the Act. The Scheme naturally deals with the disposition of the land in the whole area. Titles are displaced and regulations are made with directions as to how the whole of the Scheme is to be implemented. These regulations and directions have effect as if they were enacted in the Act."
9. Thus, it is bounden duty of the Corporation as an implementing authority to implement the scheme in accordance with law. Hence, in opinion of this Court, directions given by learned Single Judge in the impugned order is in accordance with the provisions of the Act, Rules, settled law and as per the judgment of the Apex Court.
10. On inquiry made, learned counsel for the respondentCorporation informed the Court that Page 6 of 9 C/LPA/983/2016 ORDER intention to prepare the present town planning scheme was made in the year 1963. The same is sanctioned on 22.09.1983. Thus, before 56 years, intention was declared and the scheme is sanctioned since 36 years, hence, the learned Single Judge is correct in directing the respondentCorporation to implement the scheme.
11. It would be also refer to the judgment of the Apex Court in the case of M/s. Babubhai & Co. & Ors.
Vs. State of Gujarat [1985 (2) SCC 732], wherein the Apex Court has provided that even the occupiers have been heard after due notice and has observed thus:
"8. In the instant case on an examination of the Scheme of the Act as also the purpose sought to be achieved by S. 54 it will appear clear that the topic of making of town planning schemes is dealt with in Ss. 21 to 53 while S. 54 (and some of the following sections like 55 and 71 to 78) deal with the aspect of the execution of town planning schemes and it is at the stage of execution of a town planning scheme that the power of summary eviction of occupants who have ceased to be entitled to occupy the plots in their occupation has been conferred upon the Local Authority itself a highly responsible body, and that the power is required to be exercised by it in objective manner (it is to be found by reference to the Final Scheme and its interpretation whether the occupants are occupying Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled. lands which they are not entitled to occupy). Further we are in agreement with the High Court that the power conferred upon the Local Authority is a quasi judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled. to occupy the plots in their occupation has to be arrived at Page 7 of 9 C/LPA/983/2016 ORDER after hearing such occupants and that too by passing a speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record eschewing matter extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, nongermane, irrelevant or mala fide considerations would be subject to the writ jurisdiction of Court. Having regard to these aspects, mere absence of corrective machinery by way of appeal or review would not in our view render the provision invalid."
12. From the record, it is found that the implementing authority i.e Ahmedabad Municipal Corporation has already issued notice as provided under Section 68 of the Act read with Rule 33 of the Rules as observed hereinabove. Said notice is received by one Rabari Jitendrabhai Valjibhai, who happens to be son of the present appellant, which is dated 16.09.2018. However, no further order appears to have been passed by the respondent Corporation.
13. Considering the directions issued in Special Civil Application No.2032/1999 way back on 11.08.2004 (as per dictation the date is 03.03.1999), the Corporation has taken a decision that the appellant was eligible for an alternative accommodation.
14. In light of the aforesaid, the appeal is not entertained on merits, as the directions issued by learned Single Judge is in accordance with law. Therefore, no interference is called for. Further, the contention raised by learned counsel for the appellant that there is suppression of facts would not give any title or further right to the appellant and has not prejudiced the appellant. Even according Page 8 of 9 C/LPA/983/2016 ORDER to the appellant, he is not an owner of final plot, but only he claims to be the tenant. As provided under Section 67(b) of the Act, the rights in the land in question stands crystallized as per the sanctioned scheme. The implementing authority is duty bound to implement the scheme as it is already sanctioned. However, while doing so, the respondent Corporation is bound to follow the procedure as prescribed under the Act and Rules.
15. However, considering the facts of the case, the appellant shall remain present before the Deputy Estate Officer, West Zone, on 18th February, 2019. In addition to that, as observed hereinabove, the Corporation shall also consider the plea of the appellant for an alternative accommodation as per the earlier order passed in Special Civil Application No.2032/1999. Such exercise shall be carried out within a period of three months from today.
For the foregoing, the appeal is otherwise not entertained on merits and the same is hereby disposed of. Civil Applications stand also disposed of.
Direct Service is permitted.
Sd/-
(R.M.CHHAYA, J) Sd/-
(V. B. MAYANI, J) SUCHIT Page 9 of 9