Gujarat High Court
Liyakatbhai Usufbhai Sikarwala & 6 vs Town Planning Officer & 2 on 18 February, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/8479/1997 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8479 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
================================================================
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 ?
================================================================
LIYAKATBHAI USUFBHAI SIKARWALA & 6....Petitioner(s)
Versus
TOWN PLANNING OFFICER & 2....Respondent(s)
================================================================
Appearance:
MR EKRAMA QURESHI with MR HASHIM QURESHI, ADVOCATE for the
Petitioner(s) No. 1 - 7
MR BHRAT VYAS, AGP, for the Respondent(s) No. 3
MR PRASHANT G DESAI with MR KAUSHAL PANDYA, ADVOCATE for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 18/02/2014
Page 1 of 14
C/SCA/8479/1997 JUDGMENT
ORAL JUDGMENT
The present petition has been filed by the petitioners under Articles 14, 19(1)(g), 21 and 226 of the Constitution of India as well as under the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the 'Act') read with the Urban Land Ceiling Act, 1976 for the prayers, inter alia, that appropriate writ, order or direction may be issued to hold that the action of the respondents is illegal and the final scheme is not as per the procedure of law. Further, it is prayed that the respondent authorities have no power under the Town Planning Act and therefore the action is unconstitutional and illegal. It is also prayed that appropriate writ, order or direction may be issued to the Government to revise the scheme which is finalised without inviting objections from the petitioners and invite fresh objections for Scheme No. 37 Final Plot No. 23 on the grounds stated in the petition.
2. Heard learned advocate Shri Ekrama Qureshi appearing with learned advocate Shri Hashim Qureshi for the petitioners.
3. Learned advocate Shri Qureshi has referred to the papers at length and submitted that no procedure before finalisation of the scheme has been followed. He has referred to the scheme of the Act and submitted that no notice has been served individually, though the petitioners are members of the association known as "Jay Bharat Kabadi Market Association". Referring to the provisions of the Act in detail, learned advocate Shri Qureshi submitted that straightway notice under sec. 68 of the Act for eviction has been issued, but there is no mention about any procedure which can be said to have been followed prior thereto. He emphasised that no notice has been issued, nor any procedure under the Act has been followed and the petitioners are not aware about publication of any notification. Learned advocate Shri Qureshi referred to the Page 2 of 14 C/SCA/8479/1997 JUDGMENT provisions of the Act and the scheme and pointedly referred to sec. 40 of the Act and submitted that Chapter V, sec. 40, refers to "Making and contents of a town planning scheme".
4. Learned advocate Shri Qureshi submitted that the draft scheme is required to be published and also the procedure is required to be followed including inviting objections which has not been done and therefore the rules of natural justice have been violated. He pointedly referred to sec. 42(3) of the Act and submitted that as provided in this section, if the publication of the draft scheme is not made within the prescribed period, it shall not be competent for the appropriate authority to declare the intention to make the town planning scheme. He submitted that the "appropriate authority" is required to be considered as defined in the Act in sec. 2(iii). He has also submitted that sec. 2(iii) also defines the Urban Development Authority and submitted that the Corporation is not the Authority. Learned advocate Shri Qureshi referred to the affidavit-in- reply filed by the respondents and submitted that it is a vague reply and it is not a reply. He referred to the provisions and submitted that the scheme must have been under the Bombay Town Planning Act and subsequently when it is said to have been finalised in purported exercise of power under the Gujarat Town Planing Act it is not valid inasmuch as the provisions of the Act are inconsistent. In support of his submissions, learned advocate Shri Qureshi has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1996 SC 2804. He, therefore, reiterated that the procedure as prescribed under sec. 40, 41 are not followed and substantial rights of the petitioners are violated. He has also submitted that if the notification is issued, it is required to be published in the Gazette and it could have been produced on record.
5. Learned advocate Shri Qureshi also submitted that had an Page 3 of 14 C/SCA/8479/1997 JUDGMENT opportunity been given to raise the objections, they could have raised the objections to point out that the members of the Association are doing the work/business and therefore there was no need for the proposed construction including the swimming pool, etc. and no public interest could be served. He has also stated that even assuming that notice under sec. 68 is served, it has to be by AUDA and not by the Corporation as the Corporation is not the implementing authority. He submitted that the provisions of sec. 23(2) were amended in 1995, whereas the notice under sec. 68 were issued in 1990, where the Municipal Corporation could not be the authority and was not empowered for implementation and therefore the present petition may be allowed. Learned advocate Shri Qureshi also submitted that though the notice is said to have been issued in 1990, till 1997 no steps were taken and therefore if there is a delay, the scheme cannot be implemented as it is required to be implemented within a prescribed period. He also submitted that earlier Special Civil Application No. 5079 of 1990 was filed under the ULC Act and it has an overriding effect and stay was operating and therefore also it could not have been implemented. He has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Ahmedabad Urban Development Authority v. Manilal Gordhandas and ors., reported in AIR 1991 SC 2130 (para 16). He has also referred to the judgment of the Division Bench of this High Court in the case of Kishanbhai Hargovandas Patel & anr. v. State of Gujarat & ors., reported in 2010(4) GLR 2867.
6. Learned Sr. Counsel Shri Prashant Desai appearing with learned advocate Shri Kaushal Pandya for the respondents submitted that the petitioner has no locus standi to file the present petition. He submitted that the conduct of the petitioner is required to be considered for which he referred to the affidavit-in-reply in detail. He submitted that for the same issue or grievance the petitioners who are members of the Association have already filed Civil Suit No. 5318/97 which is pending and therefore Page 4 of 14 C/SCA/8479/1997 JUDGMENT this petition would not be maintainable as the petitioners cannot be permitted to ride two horses, particularly when the petitioners have no locus standi. He has also submitted that the petitioners claim to be members of the "Jay Bharat Kabadi Market Association" and he pointedly referred to the papers of this petition and submitted that in fact the members of this association have repeatedly made representations, objections have been raised particularly with regard to the same objection that they are doing the business and construction of recreation facilities or swimming pool etc. is not in public interest. He also submitted that in spite of that, such submissions are made. He pointedly referred to Annexure VI dated 18.6.1997 and also the annexures to the affidavit-in-reply and particularly the communications addressed by the association in and about 1990 where it has been specifically admitted that the notice has been served to the association. He pointedly referred to the notice dated 27.2.1991 addressed to the Secretary and the Chairman of the association and submitted that it was specifically intimated that the scheme has been approved by the Government and therefore the same may be vacated. In response thereto, one Yunusbhai Haji Usufbhai, petitioner No. 6, has addressed a letter dated 29.8.1990. Similarly, petitioner No. 1 has also addressed a letter dated 29.8.1990 and there are letters from others. Reply has been given to the objections vide letter dated 27.2.1991. He submitted that thereafter the association has made representations/raised objections which have been considered as late as in 1997 and again the association has made the representation dated 18.6.1997 produced at Annexure-VI reiterating the same thing and therefore the contentions which have been raised are far from the truth and the petition may not be entertained. Learned Sr. Counsel Shri Desai has also referred to the affidavit-in-reply and submitted that the objections which have been raised have been considered as stated in detail in the affidavit-in-reply in para 5. Apart from this, it is also rquired to be considered that the the occupation of particular shop may have Page 5 of 14 C/SCA/8479/1997 JUDGMENT changed in some cases, but that would not make any difference and in any case it is well-settled that individual notices are not required to be served.
7. Learned Sr. Counsel Shri Desai submitted that apart from this factual background, the law is very well-settled. He submitted that as observed in the judgment in the case of Babulal Badriprasad Varma v. Surat Municipal Corporation & ors., reported in AIR 2008 SC 2919, individual notices are not required to be served once the notification has been published. He pointedly referred to the scheme of the Act and submitted that as provided the preliminary draft scheme is there. Thereafter the preliminary scheme is considered and the Town Planning Officer is appointed as officer and after considering the objections as per the procedure, normally, when it is approved, it becomes part of the Act. He referred to sub-sec. (3) of sec. 17 of the Act and submitted that the procedure has been followed and thereafter the final notice for eviction of possession has been issued in purported exercise of power under Rule 13 read with sec. 67, 68 of the Act. He therefore submitted that the submissions which have been made are required to be considered in background of these facts.
8. Learned Sr. Counsel Shri Desai submitted that the petition is filed in the year 1997 whereas the scheme has been finalised in the year 1988 after following the procedure and for the first time the petition is filed in 1997 challenging the scheme on such grounds which cannot be believed or accepted. Learned Sr. Counsel Shri Desai submitted that in any case the civil suit is also filed and therefore it is now too late for the petitioners to take any such contentions in background of the facts and when the procedure as required under the law has been followed which is evident from the record including the fact that notices are also served.
Page 6 of 14C/SCA/8479/1997 JUDGMENT
9. Learned Sr. Counsel Shri Desai has emphasised that the main contention which is sought to be raised that at the stage of sec. 67, 68 notice has been issued but the prior procedure is not followed is also belied from the fact that even in the year 1990 when the notices are issued the petitioners could have raised the objections but they have not chosen to file any proceedings or petition till the year 1997 and therefore it cannot be now permitted to be argued that the procedure has not been followed and the opportunity of hearing has not been given. Learned Sr. Counsel Shri Desai submitted that in any case in light of the fact that now the scheme has been accepted and has become part of the law, the petitioners cannot go behind it and the clock cannot be put back. He submitted that in any case when prima facie the procedure has been followed, the presumption should be made in favour of the procedure and the act which is done under the Act and therefore also now it cannot be questioned.
10. In support of his submissions, learned Sr. Counsel Shri Desai has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Babulal Badriprasad Varma v. Surat Municipal Corporation & ors., reported in AIR 2008 SC 2919 = 2008 (3) GLH 137 and emphasised the observations made in para 15, 26 and 33. He submitted that the rules do not contemplate service of individual notice. Reference is made to the observations in this judgment with regard to the procedure based on the fact that the scheme having attained finality the equitable relief cannot be claimed. Again, learned Sr. Counsel Shri Desai also referred to the conduct of the petitioner. He has also referred to the judgment of the Hon'ble Division Bench of this High Court in the case of Kashiben wd/o Pitamber Devchand & anr. v. State of Gujarat & ors., reported in 1989(2) GLR 1176. He emphasised that the same contention was raised and it has been negatived and submitted that sec. 124 of the Bombay Town Planning Act has been referred to and it would save the actions and the Page 7 of 14 C/SCA/8479/1997 JUDGMENT steps which have been taken. Learned Sr. Counsel Shri Desai also therefore submitted that presumption has to be made that when the scheme has been sanctioned, every procedure as required under the law has been followed. He submitted that the person who rises from the slumber after 10 years cannot be heard or permitted to raise any such question. In any case, learned Sr. Counsel Shri Desai submitted that the petitioners have no locus standi as it was the association which was the petitioner and also individual notices at a later stage were given to the respective occupants. He submitted that when individual notices for the possession has been given to the respective occupants, such contention is sought to be raised that individual notices were not given at the earlier stage. He therefore submitted that the association was contesting and it was on the basis of the details given in the prescribed form the notices were served which is stated in detail in the affidavit. He therefore submitted that the present petition may not be entertained.
11. In view of these rival submissions, it is required to be considered whether the present petition can be entertained.
12. As it transpires from the record, the petition is a classic case of abuse of the process of law. Admittedly, "Jay Bharat Kabadi Market Association" of which the petitioners are members, has filed Civil Suit No. 5318/97 before the City Civil & Sessions Court, Ahmedabad, which is pending with regard to the same subject-matter. In spite of this, the present petition is filed by the petitioners raising the same or similar issues and contentions are sought to be raised based on the violation of the rules of natural justice, non-compliance with the procedure under the Act read with the Rules. The emphasis has been made with regard to voilation of the rules of natural justice or denial of any opportunity of hearing and the notice for following the procedure particularly individual notices under the Act read with the Rules have not been issued.
Page 8 of 14C/SCA/8479/1997 JUDGMENT
13. As could be seen from the affidavit-in-reply, which has dealt with these aspects in detail, the Association was issued a notice under sec. 68 read with Rule 33 of the Act way back in the year 1990. The objections were invited and various letters were received from the Association which are produced collectively at Annexure-III to the affidavit-in- reply. Thereafter the objections from these very petitioners have been received and were also replied vide Annexure-IV in the affidavitit-in- reply which is placed on record. Thereafter, again, tthe Association raised the objections in the year 1997 which was also replied vide letter dated 26.6.1997 produced at Annexure-V. Thereafter also the Association raised the objections and considering the representations/objections the reply was given by the respondent Corporation on 15.7.1997 which is produced at Annexure-VI. The correspondence and Annexure-III attached to the affidavit-in-reply clearly suggests about the same issues or objections raised by the petitioners herein and also by the Association of which they claim to be members and the reply has been given. Another detailed representation dated 9.6.1997 at Annexure-VI is also addressed to the respondent Corporation. It is required to be noted at this stage that the petitioners had also made an attempt to use the good offices of the then Municipal Councillor Bhadruddin Shaikh who is said to have addressed a letter/communication to the Municipal Commissioner dated 23.6.1997 at Annexure-VI.
14. A useful reference can also be made to the judgment of this High Court reported in 2005(2) GLR 1649 in the case of Kanjibhai Dahyabhai Malsattar & ors. v. State of Gujarat & ors. It has been observed, negativing the contention of the petitioner that non-service of the special or individual notice would vitiate the scheme and such contention has been rejected. It has also been observed referring to sec. 67 & 68 of the Page 9 of 14 C/SCA/8479/1997 JUDGMENT Town Planning Act read with the Rules that when the scheme has become final, the lands covered under the scheme shall vest in the area development authority free from all encumbrances and the petitioners are left with no option but to vacate the land.
15. All this correspondence belies the fact and the allegation that an opportunity has not been given. In fact, according to these representations which have been made repeatedly, it clearly emerges that the petitioners as well as the Association for and on behalf of the members had made repeated requests for modification in the scheme which has not been acceded to. It is required to be noted that the draft scheme for which the objections were invited, the Government has granted its sanction in the year 1983. The objection is filed in the year 1997 challenging these aspects. Therefore, as rightly contended by learned Sr. Counsel Shri Desai, such objections are only filed as an abuse of process and as an after-thought only to obstruct any further progress of the T.P. Scheme and it is because of such attitude things like the Development Plan or the projects getting delayed over a period of time entangled in litigation.
16. The contention which has been raised with regard to the competent authority well as the contention that the originally scheme was under the Bombay Town Planning Act which is subsequently finalised under the provisions of the Gujarat Town Planing and Urban Development Act, 1976 and therefore it would be void ab-initio is thoroughly misconceived.
17. A useful reference can also been made to the observations made by the Hon'ble Division Bench of this High Court in a judgment in the case of Kashiben wd/o Pitamber Devchand & anr. v. State of Gujarat & anr., reported in 1989(2) GLR 1176, wherein this issue has been considered and it has been observed, Page 10 of 14 C/SCA/8479/1997 JUDGMENT "A draft scheme or any scheme prepared under the Bombay Town Planing Act can be processed further and finalised by virtue of Sec. 124 of the Gujarat Act - Once a final scheme is prepared it must be deemed to be part of the Act - The original owner loses all rights over the land, he is liable to be evicted, and he has no locus standi to file a writ petition."
It has also been observed that when there is no substantial variation, there is no need to have any de novo proceedings. In this very judgment the same contention that the municipality or the municipal corporation cannot reserve the land or cannot implement the scheme is also negatived.
18. It is required to be mentioned that observations have been made referring to the earlier judgment of the Full Bench of this High Court in the case of Dungarlal v. State, reported in [1976] XVII GLR 1152, "So far as the validity of such legislative measure is concerned, the validity can be gone into even in writ jurisdiction only to the limited extent whether there is any transgression of jurisdiction of the authorities concerned and whether the scheme as finally emerged is totally inconsistent with the Act. It is only the fundamental breaches, that is where minimum statutory essentials are not complied with, which result in a total lack of jurisdiction and not other procedural errors or defects that would render a scheme, which had become a legislative measure and a part of the Act, liable to attack or challenge in a Court on the ground that it is null and void ....It was open to a person affected to waive individual special notice specified in sub-rule (3), which was only as an additional safeguard for the individual concerned. Therefore, that could never constitute the minimum essential of the scheme or such a basic requirement that its non-c0mpliance would have any nullifying consequence."
The Full Bench further held:
Page 11 of 14C/SCA/8479/1997 JUDGMENT "The provisions of Rule 21(1) lay down the minimum essentials for protecting public interest after the Town Planning Officer commences his work. That sub-rule is introduced in accordance with principles of 'audi alteram partem'. Special individual notices under old sub-rule (3) cannot, therefore, be regarded as an essential minimum safeguard as in the case of sub-rule (1) so as to have the consequences of nullifying the final scheme."
Thus, the contention about individual notice or violation of the principles of natural justice are misconceived in light of the aforesaid observation. Further, as observed in the judgment in the case of Babulal Badriprasad Varma v. Surat Municipal Corporation & ors. (supra), the contention about individual notice is misconceived.
19. In yet another Full Bench decision of our High Court in case of Saiyed Mohamad v. Ahmedabad Municipal Corporation, reported in (1977) XVIII GLR 549, the Full Bench, dealing with the impugned notice of eviction observed :
"In view of Sec. 53, once property has vested absolutely in the local authority and all rights of these persons occupying the same have come to an end, the eviction power would be merely an administrative power of eviction. Such eviction would be of the same nature as of the persons who are evicted under the provisions of the Land Acquisition act after the acquired land has vested in the State and the matter is only of taking possession."
20. A useful reference can also be made to the judgment reported in 2000(3) GLR 2505 in the case of Ahmedabad Municipal Corporation v. Vijay Owners' Association.
21. It is also required to be mentioned that in every such measure regarding implementation of the policy or the proposed development scheme under the Act, there may be a conflict between the private/individual right and the collective right of the society. Further, in Page 12 of 14 C/SCA/8479/1997 JUDGMENT the facts of the case, the Association as a representative of the interests and rights of all the members has been taking interest and still the present petitioners individually have made representations which have been considered. The submissions about non-compliance with the procedure or the rules of natural justice are therefore without substance.
22. Further reference can also be made to the underlying purpose and the legislative intent of such Act which has been considered by the earlier Full Bench of this High Court in a judgment in the case of Dungarlal V. State, reported in [1976] XVII GLR 1152, wherein it has been observed, "For proper framing of schemes and implementing them, the individual rights are made subordinate to the wider social interests of the society and civil amenities. The individual interests are not allowed to outweigh and prevail over the wider social interests so as to thwart or torpedo salutary social schemes of Town Planning for the benefit of the public as a whole. Schemes such as the one with which we are concerned ought not to be allowed to suffer and individual interests have to be subordinated so as to subserve public good as they are to be expeditiously implemented in accordance with the true legislative intention of the Act. An elaborate procedure is prescribed under the Act and the Rules to achieve the desired objective."
In this judgment, discussion has been made to various factors including the development as well as the environment etc. suggesting to strike a balance between the individual right and the right of the society or social interest.
23. It is in this background, though the submissions have been made at length, without reference to the actual, factual background, it requires dismissal of the petition.
24. Accordingly, the present petition stands dismissed. Rule is discharged. Interim relief stands vacated.
Page 13 of 14 C/SCA/8479/1997 JUDGMENT
(RAJESH H.SHUKLA, J.)
FURTHER ORDER
After the order was pronounced, learned advocate Shri Qureshi has requested for stay of the operation of the order to enable his clients to approach the higher forum. As the interim relief has been operating since 1998 as requested it would be in fitness of things if the same is extended for a further period of four weeks to enable the petitioners to approach the higher forum. Therefore, the operation of the order is stayed for four weeks.
(RAJESH H.SHUKLA, J.) (hn) Page 14 of 14