Gujarat High Court
St. Xaviers High School-Hansol vs Secretary- Urban on 28 June, 2013
Author: Anant S.Dave
Bench: Anant S. Dave
ST. XAVIERS HIGH SCHOOL-HANSOL....Petitioner(s)V/SSECRETARY- URBAN DEVELOPMENT AND URBAN HOUSING DEPARTMENT C/SCA/10238/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10238 of 2013 ================================================================ ST. XAVIERS HIGH SCHOOL-HANSOL....Petitioner(s) Versus SECRETARY- URBAN DEVELOPMENT AND URBAN HOUSING DEPARTMENT & 2....Respondent(s) ================================================================ Appearance: MR PC KAVINA Senior Advocate with MR MB GOHIL, ADVOCATE for the Petitioner(s) No. 1 MR ROHAN YAGNIK AGP for Respondent No.1 ================================================================ CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 28/06/2013 ORAL ORDER
1. Draft amendment is granted.
Amendment be carried out forthwith.
This petition under Article 226 of the Constitution of India is filed by the petitioner, a registered trust, involved in educational services at Hansol, which manages the school where about 3000 children are studying with both English and Gujarati medium.
Mr. P.C.Kavina, learned Senior Advocate, appearing for the petitioner, would contend that respondent Nos.2 and 3 have arbitrarily, unreasonably and contrary to the provisions of Gujarat Town Planning Act and Rules made therein, decided to implement town planning Scheme by making a road of 18 meters width, admittedly which was not even in the draft scheme except to the extent of 12 meters. If the respondent Nos.2 and 3 are permitted to implement the scheme and 18 meters wide road through the premises of school is laid, it affects sports complex of the school, which would not be in the interest anyone. Not only the school, but the 3000 children studying in school will bear the brunt of executive action, which is not in the public interest.
It is further submitted that even the residents of the adjoining society have clear access to the main road and thus there is no imminent need to demolish the temporary structures of sport complex of the petitioner to lay down road of 18 meters.
Referring to the draft amendment, it is submitted that in spite of the representation made by the petitioners to respondent authorities requesting not to take action pursuant to the notices issued in the year 2008-09, while sanctioning the Town Planning Scheme, the officers of respondent Nos.2 and 3 have orally threatened that such structures would be demolished.
Having heard learned counsel for the petitioners and considering the facts and circumstances of the case, it is undisputed that as early as in 2008, the Town Planning Scheme in question attained finality. By virtue of provisions of Section 65 of Gujarat Town Planning and Urban Development Act, 1976 [for short, `the Act'] the scheme has become Act and even prior to that when any draft town planning scheme gets sanction of the State Government land automatically vest into the Government as Section 48A of the Act. Section 67 of the Act is about effect of preliminary scheme wherein it is provided that on the day on which the preliminary scheme comes into force, 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 and all rights in the original plots which have been re-constituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer. Section 68 is about power of appropriate authority to evict summarily, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme and summary eviction by the appropriate authority is laid down in Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979. Therefore, notices issued under the Act by the competent authority of the Corporation are perused and it appears that they have followed the procedure laid down under the Act and Rules framed thereunder.
6. In the facts of the case on hand, the authority implementing the town planning scheme have not only followed procedure in accordance with law in the year 2009 notices were also issued under Rule 33 stating that petitioner Trust had no right whatsoever the land in question and to vacate it within a reasonable time limit, but under the guise of representation, the petitioner unauthorizedly and illegally continued to occupy the land reserved for a public road. A bare perusal of proposal to Town Planning Scheme also reveal that road of 12 meters shown thereunder was also subject to change and modification. Thus, admittedly, 12 meters road was proposed in draft Town Planning Scheme which came to be finally sanctioned and even preliminary Scheme was finalised. Thus, for all the purposes the petitioner had lost its right whatsoever upon vesting of the land in the State authorities. In spite of clear statutory provisions under Sections 67 and 68 and other such provisions of the Act, the petitioner continued to occupy the public place and not removed encroachment and now shelter is taken about sport activities and future of children, and therefore, protection be accorded. Such plea of the petitioner cannot be accepted by this Court, at this stage, in exercise of powers under Article 226 of the Constitution of India.
In view of the above and in absence of merit, this petition fails and is hereby dismissed summarily.
(ANANT S.DAVE, J.) pvv Page 3 of 3