Gujarat High Court
Dhananjay Shashikant Vakhariya & vs State Of Gujarat & 3 on 23 February, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/12770/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12770 of 2015
==========================================================
DHANANJAY SHASHIKANT VAKHARIYA & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
================================================================
Appearance:
MR ARPIT A KAPADIA, ADVOCATE for the Petitioner(s) No. 1 - 2
MR VENUGOPAL PATEL, AGP for the Respondent(s) No. 1 , 4
MR DHAVAL G NANAVATI, ADVOCATE for the Respondent(s) No. 2
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 3
================================================================
CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 23/02/2017
ORAL ORDER
1. Heard Mr.R.R.Marshal, learned Senior Counsel with Mr.Arpit A. Kapadia, learned counsel for the petitioners, Mr.Venugopal Patel, learned Assistant Government Pleader for respondent Nos.1 and 4, Mr.Dhaval G. Nanavati, learned counsel for respondent No.2 and Mr.H.S.Munshaw, learned counsel for respondent No.3.
2. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order or direction to declare that action of the respondents to deduct approximately 37 % of land from the total area of land bearing Survey No.135, Block No.129, which is allotted Original Plot No.120, admeasuring 12205 Sq.Mtrs., whereby in lieu of the same, the petitioners have been allotted Final Plot No.120, admeasuring 14336 sq.mtrs., in Town Planning Scheme No.61 (Parvat-Godadara), Surat city and has further prayed to Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Aug 13 23:16:30 IST 2017 C/SCA/12770/2015 ORDER declare such scheme as arbitrary and illegal. The petitioners have further prayed for appropriate writ, order or direction, directing the respondent authorities to remove the proposed allocation/reservation in the land belonging to the petitioners for the purpose of water distribution center and to grant development permission for the whole area of the plot belonging to the petitioners.
3. Learned counsel for the petitioners has relied upon the statement that when intention to prepare the scheme was declared by SUDA, deduction in other plots which are in the same town planning scheme area and which are in the vicinity of the petitioners' plotm is only between 5 to 13 %, whereas in case of the petitioners only, deduction is to the tune of 37 %. Learned counsel for the petitioners has also relied upon the similar chart, where the area in question was within the area of Surat Municipal Corporation, wherein in other plots also, deduction from 0 to 13 % is provided. It was further pointed out that while the petitioners applied for permission to develop the land in question, the same was declined by SUDA. It is specifically contended by learned counsel for the petitioners that out of 13 applications, only the application of the petitioners was declined and in rest of the applications, permissions were granted for larger area than proposed final plot. It was further pointed out that ultimately, by development permission dated 14.07.2011, the petitioners have been granted permission only for Final Plot No.120 as allotted in the draft Town Planning Scheme. Learned counsel for the petitioners predominantly contended that deduction is unreal and the petitioners have been meted out with different treatment, and there is Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Aug 13 23:16:30 IST 2017 C/SCA/12770/2015 ORDER inequality between deduction in the same town planning scheme area and only the petitioners' rights have been denied to develop the land as a whole, whereas other persons have been given benefit of less deduction.
4. As against this, learned counsel for the respondents have relied upon the affidavits, which are filed.
5. Record of the petition indicates that vide Notification dated 12.07.2011, the State Government has sanctioned Draft Town Planning Scheme No.61 under Section 48(2) of the Act. Thereafter, the Town Planning Officer is appointed and the Town Planning Officer is at the stage of preparation of preliminary town planning scheme as envisaged under Section 52(2) of the Act, objections/suggestions were invited giving notices to the land owners.
6. It deserves to be noted that Town Planning Officer in his affidavit dated 0.12.2016 has averred as under:-
"8. I say and submit that as part of drawing preliminary scheme, the tentative proposals plan is prepared by Town Planning Officer. Thereafter, objections/suggestions are invited giving notices to the land owners by Town Planning Officer. The said draft Town Planning Scheme no.61 is yet to be finalized by Town Planning Officer. Town Planning Officer has not taken any final decision with respect to section 52(10 of the Gujarat Town Planning and Urban Development Act, 1976. Therefore, at relevant stages the Town Planning Officer will act accordingly the privations of the said Act and Rules made thereunder. Therefore, the present petition is filed by the petitioner is of premature stage.
9. I say and submit that as per the sanctioned draft town planing scheme, the final plot No.241 (R-49) for water Distribution Center admeasuring area of 5450 sq.mtrs. Is allotted to the appropriate authority i.e. Surat Municipal Corporation. As per the tentative proposal is prepared by the Town Planning Officer, the same proposal is maintained. As per the certified dated 08.08.2014 issued by the office of the District Inspector Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 13 23:16:30 IST 2017 C/SCA/12770/2015 ORDER of Land Record, total area of the scheme is 29,05,139 sq.mtrs. The whole exercise was carried out as per the provisions of the said Act.
10. I respectfully say and submit that the concerned appropriate authority has powers to propose or designate any land for any purpose included in the Development Plan or Town Planning Scheme in public interest, as per the provision of the Gujarat Town Planning and Urban Development Act, 1976 and rules 1979 made there under. As per the provisions of Section 48(4) of the said Act, land are required by the appropriate authority for the purpose specified in the clauses (c), (f), (g) or (h) of sub- section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances. I respectfully say and submit that the draft town planning scheme is yet to be finalized. The Town Planning Officer has not taken any final decision with respect to section 52(1) of the Gujarat Town Planning and Urban Development Act, 1976 therefore, the present petition is filed at a premature stage."
7. As far as the permission granted to the petitioners is concerned, considering the provisions of Section 49 of the Act and the ratio laid down by this Court in the case of Modinagar Co-Op. Housing Society Ltd. & Anr. Vs. State of Gujarat & Ors. [2006 (3) GLR 2020], the petitioners can be granted permission to develop only the area which is mentioned as Final Plot No.20. As far as other contentions are concerned, more particularly the area of deduction and its extent are concerned, as stated by the Town Planning Officer, the Town Planning Officer is seized of the Town Planning Scheme. As learned counsel for the petitioners stated that the petitioners have already filed their objections before the authority, therefore, the same shall be considered by the Town Planning Officer while preparing the town planing scheme and even before submitting the said scheme with his decision under Section 64 of the Act, the Town Planning Officer shall send all the objections filed by the petitioners to the State Government as and when the scheme is submitted under Section 64 of the Act Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Aug 13 23:16:30 IST 2017 C/SCA/12770/2015 ORDER and the State Government before sanctioning the scheme, shall consider the objections of the petitioners. The Town Planning Officer as well as the State Government shall also consider the specific objections which are raised by the petitioners as regards the deduction to the tune of 37 % from the area of original plot in comparison to much lesser deduction in the plots situated within the vicinity. The Town Planning officer shall consider the objections filed by the petitioners as provided under Rule 26(4) of the Rules.
In light of the aforesaid, the petition stands disposed of at this stage. Notice is discharged. Ad- interim relief granted earlier, stands vacated.
(R.M.CHHAYA, J.) Suchit Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Aug 13 23:16:30 IST 2017