C/SCA/5253/2023 ORDER DATED: 24/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5253 of 2023
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HAMIDKHAN S/O BASHIRAHMEDKHAN SAMSHUKHAN
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 24/03/2023
ORAL ORDER
1. Heard learned advocate Mr. Samir Afzal Khan appearing for the petitioner and as learned advocate Mr. Satyam Chhaya was instructed by this Court to appear on advance copy, learned advocate Mr. Satyam Chhya appearing for the Ahmedabad Municipal Corporation.
2. By way of this petition, the petitioner has prayed for the following reliefs :-
"(A) Be pleased to admit and allow the application.
(B) Be pleased to hold that once 1st Page 1 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 Notice u/s 68, rule 33 of said Act dated 12/03/1987 is already issued thereafter 34 years later subsequent notice u/s 67 of said Act at "annexure-J-1" dated 19- 23/07/2021 and 2nd Notice u/s 68 of said act, Rule-33 of said rule dated 16/09/2021 at "Annexure-K-1" are beyond jurisdiction, and also after hearing the order passed dated 18/03/2023 at "Annexure-L-4" redundant and illegal and bar by section 52 of said Act as the same is without Sanction/Variation and also bar under section 20(2) of the said act as after 34 years of Notice same is implemented now therefore be pleased quashed the same in the interest of justice -
And Thereby be pleased to hold that the petitioner is valid title holder of the land prior to Notice (Sec.68/33 rule) dated 12/03/1987 and therefore respondents have violated may be directed to handover peaceful and vacant possession of commercial land in the Final Plot No.243 to the extent of 39.2 sq.mts as per Town Planning Scheme No.30 (Asarwa Nort Ext), Ahmedabad to the Petitioner herein and until then the possession of the petitioner may not be disturbed in the interest of the justice;
Alternatively Be pleased to hold that the petitioner is entitle to get compensation as provided u/ s 82 of said Act for his 70 years Old Registered commercial shop to the extent of 39.2 sq.mts. by market value because by said demolition entire shop merged into road as provided u/s 125 of the said Act because said shop was earlier covered Page 2 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 under the Old the Bombay Town Planning Act, 1954 while after new Act direct Notice under Section 68, rule 33 of said Act was issued on 12/03/1987 and petitioner has sought compensation immediately but unpaid; therefore he is entitled for compensation u/s 82 of said Act in case of Respondent failed to hand over commercial vacant land in Final Plot No:243 to the petitioner in the interest of justice.
(C) In the meanwhile, Be pleased to order that pending hearing and final disposal of this petition, the respondents herein be directed not to take possession of land the petitioner until the respondent may not handover peaceful and vacant possession of Final Plot No. 243 as per Town Planning Scheme No.30 (Asarwa North Extension), pursuance to notices at "Annexure-L-4" Ahmedabad to the Petitioner herein in the interest of the justice; (D) Be pleased to grant such other and further relief as may be deemed proper in the facts of the case."
3. The prayer made in the petition would indicate that the order dated 18.3.2023 is the latest order passed by the Ahmedabad Municipal Corporation which is subject matter of challenge.
4. Earlier the petitioner had preferred Special Civil Application No.14175 of 2021, wherein also Page 3 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 the petitioner had prayed for the following reliefs :-
"(A) Be pleased to admit and allow the application.
(B) Be pleased to hold that once the notification under section 68, rule 33 of said Act dated 12/03/1987 is already issued then after 34 years subsequent notice u/s 67 of said Act at "annexure-J- 1" dated 19-23/07/2021 and another notification u/s 68 of said act, rule-33 of said rule dated 16/09/2021 at "Annexure-K-1" are beyond Jurisdiction, redundant and illegal and bar by section 52 of said Act as the same is without Sanction/Variation and also bar under section 20(2) of the said act as after 34 years of Notification same is implemented now therefore be pleased quashed the same in the interest of justice -
And Thereby be pleased to hold that the petitioner is valid title holder of the land prior to Notification dated 12/03/1987 and therefore respondents may be directed to handover peaceful and vacant possession of commercial land in Final Plot No.243 to the extent of 39.2 sq.mts as per Town Planning Scheme No.30 (Asarwa Nort Ext), Ahmedabad to the Petitioner herein and until then the possession of the petitioner may not be disturbed in the interest of the justice;
Alternatively Be pleased to hold that the petitioner is Page 4 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 entitle for the compensation as provided u/s 82 of said Act for his commercial property u/s 125 of the said Act i.e. the land was covered under the Bombay Town Planning Act, 1954 and direct Notification under Section 68, rule 33 of said Act was issued on 12/03/1987 and petitioner has sought compensation immediately; therefore he is entitled for compensation u/s 82 of said Act in case of Respondent failed to hand over commercial vacant land in Final Plot No:243 to the petitioner in the interest of justice.
(C) In the meanwhile, Be pleased to order that pending hearing and final disposal of this petition, the respondents herein be directed not to take possession of land the petitioner until the respondent may not handover peaceful and vacant possession of Final Plot No. 243 as per Town Planning Scheme No.30 (Asarwa North Extension), Ahmedabad to the Petitioner herein in the interest of the justice; (D) Be pleased to direct the respondents herein particularly respondent no.2 herein to take steps to remove the possessor of the Final Plot No.243 of Town Planning Scheme No.30 (Asarwa North Extention), Ahmedabad to the extent of 39.2 sq.mts and thereby also to consider the representation of the Petitioner and to take steps accordingly in the interest of justice;
(E) Be pleased to grant such other and further relief as may be deemed proper in the facts of the case."
5. A comparison of reliefs prayed for in this Page 5 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 petition as well as in Special Civil Application No.14175 of 2021 preferred by the petitioner which was disposed of vide order dated 7.1.2023 would indicate that the prayers made in both the petitions were more or less same. However, after the aforesaid petition being Special Civil Application No.14175 of 2021 as the petitioner was heard and an order dated 18.3.2023 was passed, the petitioner has preferred this petition whereby additionally the petitioner has challenged the order dated 18.3.2023, which was not the subject matter of challenge in earlier round of litigation.
6. The grievance of learned advocate Mr. Samir Afzan Khan appearing for the petitioner is that :-
6.1 In the year 1910-1920, one Patel Shantilal Mohanlal constructed certain rooms and shops and in the year 1970-1971, the father of the petitioner took one of the shops on rent and started selling grains. In the year 1973, the Page 6 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 petitioner's father started flour factory viz. Nagrik Flour Factory and started paying Tax of the Municipal Corporation, light bills etc., he also applied for license for the flour factory and the same was given. All these documents are relied upon by the petitioner to establish that the petitioner is carrying on his business at the aforesaid place since 1970-1971. 6.2 It is the case of the petitioner that the shops which was taken by the petitioner on rent was constructed on Revenue Survey No.567/B paiki and the same was given Plot No.150 which subsequently the petitioner purchased. 6.3 According to learned advocate Mr. Samir Afzal Khan appearing for the petitioner that the land-in-question is situated on Original Plot No.150 which was given Final Plot No.243 after the Preliminary Town Planning Scheme in respect of Asarwa was sanctioned in the year 1978. 6.4 Though the Preliminary Town Planning Page 7 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 Scheme was sanctioned in the year 1978, the same could not be implemented even for the purpose of widening of the road, for the reason that some people including the petitioner were having there residential and commercial establishments on the land which was earmarked for Town Planning Road. For which, time to time notices under Sections 67 and 68 read with Rule 33 were given to the petitioner. However, on one ground or another or for one reason or another, those notices could not be adjudicated and ultimately, a notice dated 16.9.2021 under Section 68 read with Rule 33 of the Town Planning Act was given to the petitioner.
6.5 The petitioner challenged the aforesaid notice along with a notice under Section 67 dated 19-23/07/2021 and by way of Special Civil Application No.14175 of 2021 and when the petition was heard on 7.1.2023, learned advocate appearing for the Ahmedabad Municipal Corporation made a statement that the petitioner Page 8 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 would be heard and unless the petitioner is heard and an objections are considered, the Corporation will not take any coercive action against the petitioner and therefore, the petitioner did not press the petition and participated in the process as prescribed under Town Planning Act and after hearing the petitioner, the order dated 18.3.2023 was passed, whereby the petitioner was directed to handover possession of the land bearing original Plot No.150 and more particularly to hand over the possession of the land for the purpose of 9.14 meter Town Planning Road.
7. Being aggrieved by the aforesaid, the present petition is preferred.
8. Learned advocate Mr. Samir Afzal Khan appearing for the petitioner made lengthy submissions however, crux of the submission is as under :-
(i) That the petitioner is valid title holder and therefore, his land could not Page 9 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 have been taken away even if, the Preliminary Town Planning Scheme has become final.
(ii) If the petitioner's land is required for implementation of Preliminary Town Planning Scheme in that case, the petitioner is required to be paid compensation as per Section 82 of the Town Planning Act.
(iii) The Corporation or the State either of the Authorities have not complied with the provision of Section 20(3) of the Town Planning Act.
(iv) It is not open for the Authority to issue notice under Section 67 and 68 read with Rule 33 more than once. If any notice is given more than once, the same can be said to be illegal and hence, it would vitiate entire proceedings.
(v) The petitioner's case is required to Page 10 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 be considered for acquisition of land and accordingly compensation is required to be paid to the petitioner.
9. Apart from aforesaid submissions, no other submissions were made by learned advocate Mr. Samir Afzal Khan appearing for the petitioner.
10. Learned advocate Mr. Samir Afzal Khan did not rely upon any of the judgment of either this Court or of the Hon'ble Supreme Court or any other High Courts.
11. Learned advocate Mr. Satyam Chhaya appearing for the Ahmedabad Municipal Corporation on advance copy as per the direction of this Court vehemently opposed the petition and submitted that the petitioner is trying to mislead this Court by abusing the process of law and misusing the process of law. Learned advocate Mr. Satyam Chhaya submitted that the petitioner, after the Town Planning Scheme is sanctioned is challenging the notice which has been decided Page 11 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 vide order dated 18.3.2023, on the ground that the requirement of Section 20(3) has not been followed. However, he states that the aforesaid procedure related to Section 20(3) would be required to be followed in respect of Development Plan and not for the purpose of framing of Town Planning Scheme. 11.1 The procedure prescribed under the Act starts from Section 40 onwards. The petitioner seems to have misread the provisions of Town Planning Act completely and therefore, the submissions made by learned advocate appearing for the petitioner in respect of not following the procedure as prescribed under Section 20(3) of the Act is absolutely irrelevant for the purpose of deciding this petition and therefore, the same may not be considered by this Court. 11.2 As far as the submission about the petitioner have valid title is concerned, learned advocate Mr. Satyam Chhaya appearing for the respondent submitted that it is because the Page 12 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 petitioner is having valid title at every stage the opportunities were given to the petitioner, which either the petitioner did not avail and whenever availed, the petitioner failed to convince the Authority.
11.3 Learned advocate Mr. Satyam Chhaya also submitted that what is important is that adjudication of notice under Section 67 or under Section 68 read with Rule 33 takes place and not the number of times notices are issued. Learned advocate Mr. Satyam Chhaya submitted that if any notice which has been issued earlier has remained undecided in that case, for implementation of Town Planning Scheme, the Implementing Authority can once again re-issue the notice, which cannot be said to be prohibited or barred by any of the provisions of law. The law or the Act itself does not prohibit the re-issuance of notice, as notices are required to observe the principles of natural justice and therefore, it is not the case of the Page 13 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 petitioner that once adjudication pursuant to a notice has taken place and despite that once again, the notice is issued to the petitioner and therefore, the same is invalid. If the authority deems it appropriate to re-issue the notice after sometime, it is open for the Authority to issue the notice for better and effective implementation of Town Planning Scheme.
11.5 Learned advocate Mr. Satyam Chhaya further submitted that Section 67 of the Act itself vest all the land which forms the part of Preliminary Town Planing Scheme into the State Government and therefore, even if the petitioner has title, the title would cease to be with the petitioner the moment Preliminary Town Planning Scheme is sanctioned as per Section 65 of the Act and therefore, the submission of learned advocate Mr. Samir Afzal Khan that the petitioner is having valid title of the land cannot be considered once the Preliminary Town Page 14 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 Planning Scheme has been sanctioned by the Authority.
11.6 Learned advocate Mr. Satyam Chhaya submitted that even if, the petitioner is having valid license and is having Tax Bills and Light Bills to indicate that he is in possession of the land-in-question since last more than 50 years, the same cannot be said to be a ground to stall the implementation of Town Planning Scheme which has been finalized.
11.7 Lastly, learned advocate Mr. Satyam Chhaya submitted that an application for compensation was required to be made by the petitioner at the stage of Section 52(3) of the Town Planning Act. However, the record indicates as pointed out by the learned advocate Mr. Samir Afzal Khan that first such application for compensation was given by the petitioner in form of a representation in the year 1987, after the Preliminary Town Planning Scheme was sanctioned in the year 1978. By making the aforesaid Page 15 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 submissions learned advocate Mr. Satyam Chhaya prayed for dismissal of the petition with costs. 11.8 Learned advocate Mr. Satyam Chhaya also submitted that the petitioner has miserably failed in pointing out the error committed by the Authority, who has adjudicated the notice under Section 68 read with Rule 33 pursuant to the order passed by this Court on 7.1.2023 in Special Civil Application No.14175 of 2021. 11.9 By making the aforesaid submissions, learned advocate Mr. Satyam Chhaya prayed for dismissal of the petition.
12. I have heard learned advocates appearing for the respective parties and perused the documents. On perusal of the documents this Court finds that the Preliminary Town Planning Scheme was sanctioned in the year 1978 and thereafter thrice the scheme was varied. However, as far as the petitioner's original Plot No.150 for which Final Plot No.243 is Page 16 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 allotted has never been a matter of variation at the time of any of the variation and therefore, the scheme had become final as far as the petitioner's final plot is concerned.
13. Further, what is important and required to be seen is that the petitioner's land is required for widening the Town Planning Road. Though the scheme has been sanctioned in the year 1978, even after almost 45 years, due to the non-cooperation of petitioner, the scheme could not be implemented and even at this stage after availing sufficient opportunity the petitioner has tried to challenge the same on one ground or another. As far as the submission of learned advocate Mr. Samir Afzal Khan about title or having licenses etc are concerned, in view of provision of Section 67 of the Act veste all land required by the appropriate authority in respect of Preliminary Town Planning Scheme and therefore, the petitioner is having valid title of the land or is having licenses etc Page 17 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 becomes absolutely irrelevant and insignificance.
14. Considering the fact that the petitioner has filed this petition after the Preliminary Town Planning Scheme is sanctioned and has reached up to the stage of implementation and therefore, those arguments are absolutely irrelevant and therefore, the land has already been vested in State Government, those submissions are rejected.
15. As far as the petitioner's submission in respect of not following the procedure prescribed under Section 20(3) of the Act is concerned has rightly pointed out by learned advocate Mr. Satyam Chhaya, the provision of Section 20(3) would apply to Draft Development Plan and not at this stage. The petitioner has misread the provisions of law and could not point out from the record that once the Draft Town Planning Scheme was intimated thereafter any of the objections of the petitioner were not Page 18 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 considered by the Authority or the Authority has not heard the petitioner.
16. Once the petitioner has participated in the adjudication process pursuant to the notice under Section 68 read with Rule 33, the petitioner could have raised all the objections before the Authority. However, despite the Authority having considered the petitioner's objection, once again the petitioner is reiterating those facts without there being any documentary evidence in support of those submissions. In absence of there being any supportive material in the form of documentary evidence, this Court is not in a position to consider the submissions made by learned advocate Mr. Samir Afzal Khan that at the relevant point of time, the petitioner was not heard or his objections were not considered.
17. On perusal of impugned order dated 18.3.2023, this Court finds that the Authority has not committed any error and the order is a Page 19 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023 C/SCA/5253/2023 ORDER DATED: 24/03/2023 reasoned order in consonance with the provisions of Act.
18. In view of above discussion, this Court do not find any merit in this petition and hence, the same is required to be dismissed and accordingly dismissed.
(NIRZAR S. DESAI,J) Pallavi Page 20 of 20 Downloaded on : Mon Mar 27 20:38:23 IST 2023