Gujarat High Court
Manaji Punjaji Thakor vs State Of Gujarat on 3 July, 2025
NEUTRAL CITATION
C/SCA/302/2013 JUDGMENT DATED: 03/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 302 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
Yes
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MANAJI PUNJAJI THAKOR & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Petitioner(s) No. 1,2
MR VIKRAM J THAKOR(2221) for the Petitioner(s) No.
1.1,1.2,1.3,1.4,1.5,2.1,2.2,2.3,2.4
G H VIRK(7392) for the Respondent(s) No. 2,3
MR SIMRANJITSINGH H VIRK(11607) for the Respondent(s) No. 2,3
MS SONAL D VYAS(999) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 5,6
MR SAHIL TRIVEDI, LD.AGP for Respondent No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 03/07/2025
ORAL JUDGMENT
1. This petition is filed with the following prayers:
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue writ of Page 1 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined mandamus or appropriate writ of certiorari or appropriate writ, order or direction quashing and setting aside the impugned Town Planning Scheme No. 241 (Nana Chiloda) so far as it relates to land in question i.e. Survey No.33/1 and 33/2 of Nana Chiloda (Naroda), Tal. & Dist. Gandhinagar and impugned eviction notice dated 23/10/2012 (Annexure-J) and all the notifications, orders and proceedings undertaken to frame Draft T.P. Scheme. No. 241 (Nana Chiloda) so far as it relates to survey nos. 33/1 and 33/2.
(BB) Your Lordships may be pleased to quash and set aside the notice dated 2.1.2013 Annexure "S:"
(BBB) Your Lordships may be pleased to quash and set aside the impugned notice dated 28.10.2024 (Annexure- M/1 and order dated 26.11.2024 (Annexure-M/3) and be pleased to pass appropriate direction against the concerned officer of the respondent no. 26 for issuing the eviction notice dated 28.10.2024 and passing the order dated 26.11.2024 in spite pendency of the petition.
(C) In alternative of prayer made in Para (B) Your Lordships may be pleased to direct the revenue authorities more particularly the Mamlatdar (E-dhara), Gandhinagar to make appropriate correction in village Form No. 7/12 by correcting measurement of survey no. 33/2 as 21044 sq. mtrs. instead of 16289 sq.mtrs. and be pleased to direct the Town Planning Authority and the State Government to allot the final plot in lieu of survey no.33/2 as per the corrected measurement i.e., 21044 sq. mtrs. of survey no. 33/2.
(D) In alternative of prayer made in Para-(B), Your Lordships may be further pleased to direct the Town Planning Officer to make the valuation of the constructed properties of the petitioners being affected because of laying down of T.P. Road, calculate the loss likely to be suffered by the petitioners and to make the payment of compensation with further direction to town planning authority and revenue authority to grant permission to reconstruct residential and other constructions including temple and tubewell before Page 2 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined implementing the T.P. Scheme.
(E) During the pendency and till final disposal of this petition, by way of interim relief, Your Lordships may be pleased to stay the implementation, operation and execution of T.P. Scheme No.241 (Nana Chiloda) and impugned eviction notice dated 23/10/2012 (Annexure-J) with further directions to the respondents not to interfere with the actual physical possession of the petitioners over the land in question.
(F) Any other relief deemed just and proper may please be granted justice. in the interest of justice."
2. Facts in brief, as referred in the petition, are as under:
2.1 The petitioners and their family members are owners and occupiers of various lands bearing survey No.33/1 admeasuring 24484 sq.mtrs. and survey No.33/2 admeasuring 21044 sq.mtrs. situated in sim of village:
Chiloda (Naroda), Taluka & District: Gandhinagar (hereinafter referred to as "subject land"). It is case of the petitioners that they are cultivating the subject land and also residing there. For the purpose of residence, they have constructed their residential houses and keeping their agriculture produce, equipments and cattle. There exists a Tube well there. To justify ownership of land, 7/12 extracts of survey No.33/1 and 33/2 are placed on record at Annexure "B" (Page 29 to 30). As Page 3 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined per revenue record Survey No.33/1, the same is restricted tenure land and survey No.33/2 is old tenure land.
2.2 It is case of the petitioners that so far as survey No.33/2 is concerned, its actual measurement is 5 Acre 08 Guntha (21044 sq.mtrs.), however, by mistake in village Form No.7/12, it is mentioned lesser as 16289 sq.mtrs. For the correct measurement of area of survey No.33/2, the petitioners have placed reliance on map dated 04.06.1926 at Annexure "C" (Page-31). In view of map dated 04.06.1926, Mamlatdar, Gandhinagar under order dated 10.09.2008 Annexure "D" (Page 33) had communicated to correct the measurement in revenue records (7/12 extract). However since record of survey No.33/2 was not corrected in 7/12 extracts, the petitioners made an application dated 22.09.2010 to Mamlatdar, E-dhara, Gandhinagar to correct the same by placing reliance on map of year 1926, where measurement of 5 Acre 08 Guntha (21044 sq.mtrs.) is referred. It is stated in the application that measurement referred in 7/12 extracts i.e. 16289 sq.mtrs. is erroneous and deserves to be replaced as 21044 sq.mtrs. Application of the petitioners is annexed at Annexure "E" (Page-34).
Pursuant to an application, reply was received on Page 4 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined 05.08.2010 by office of DILR that measurement of survey No.33/2 is 5 Acre 08 Guntha, which comes to 21044 sq.mtrs. The communication of DILR dated 14.07.2016 addressed to the petitioners is annexed at Annexure "F" (Page-35).
2.3 It is case of the petitioners that during pendency of petitioners' application seeking correction of measurement in revenue records (7/12 extract) of survey no. 33/2, a resolution No.57 dated 20.02.2009 was passed to frame Draft Town Planning Scheme- 241 (Nana Chiloda) and accordingly Public Notice dated 06.03.2009 at Annexure "G" (Page-36) was issued declaring intention to frame Draft Town Planning Scheme- 241 (Nana Chiloda). Pursuant to intention to frame Draft Town Planning Scheme- 241 (Nana Chiloda), the petitioners were served upon Notice dated 05.09.2009 calling upon them to remain present in the meeting of land owners on 11.09.2009. The said notice was served to the petitioners because their land bearing survey Nos.33/1 and 33/2 was included in Draft Town Planning Scheme- 241 (Nana Chiloda). The petitioners accordingly submitted their objections on 25.09.2009 to Town Planning Authority (Annexure "I" Page-38). It is case of the petitioners that Page 5 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined along with other objections, one of the objections was with regard to area of survey No.33/2, considered as 16289 sq.mtrs. instead of 21044 sq.mtrs. (5 Acre 08 Guntha).
2.4 It is case of the petitioners that without considering their objections and without issuance of any Notice of hearing, the petitioners were served with the Eviction Notice dated 23.10.2012 (Annexure "J" Page-47). Respondent No.4- AUDA directed the petitioners to hand over possession of the land for the purpose of Draft Town Planning Scheme- 241 (Nana Chiloda). The said scheme was thereafter sanctioned by Notification dated 10.09.2012. The petitioners once again objected to the Notification dated 10.09.2012 by raising objections dated 12.11.2012 (Annexure "K" Page-49). Despite raising objections, without considering the same, Town Planning Officer published public notice dated 17.12.2012 under Rule 26(1) and 26(3) of Gujarat Town Planning and Urban Development Rules, where survey Nos.33/1 and 33/2 have been referred. Once again, objections were raised. Aggrieved by Notice dated 23.10.2012 Annexure "J", the present petition was filed.
Page 6 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined 2.5 Thereafter, on account of incorporation of petitioners' survey Nos.33/1 and 33/2 in the city limit of Ahmedabad Municipal Corporation, eviction order dated 26.11.2024 was passed by the Ahmedabad Municipal Corporation under Section 68 of the T.P. Act read with Rule 33 of Gujarat Town Planning and Urban Development Rules. Aggrieved by notice dated 26.11.2024, the petition was amended, which is also subject matter of this petition.
3. Heard learned advocate Mr.Vikram Thakor for the petitioners, learned Assistant Government Pleader Mr.Sahil Trivedi for respondent No.1 and learned Government Pleader Mr.G.H.Virk assisted by learned advocate Mr.S.H.Virk for respondent Nos.2 and 3.
4. Learned advocate Mr.Vikram Thakor for the petitioners submitted that pursuant to finalization of Draft Town Planning Scheme- 241 (Nana Chiloda) vide Notification dated 10.09.2012 (Annexure R-Page-91), Notice dated 23.10.2012 was issued directing to vacate the subject land. The said notice is erroneous and deserves to be quashed and set aside. Inviting attention of this Court to the Notice dated 23.10.2012, Learned Advocate submitted Page 7 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined that undisputedly, the petitioners land bearing survey No.33/1 is restricted tenure land admeasuring 24484 sq.mtrs. whereas land bearing survey No.33/2 is old tenure land admeasuring 21044 sq.mtrs. Despite that, in the Notice against survey No.33/2, land admeasuring 16289 sq.mtrs. has been referred. For this mistake the petitioners immediately raised objection inviting attention to direct revenue authority (Mamlatdar) to first make correction in the measurement in relation to survey No.33/2. It was also brought to the notice of Town Planning Authority that the petitioners' application before Mamlatdar seeking correction in 7/12 extracts in relation to survey No.33/2 is pending. This aspect was not considered and therefore, Notice dated 23.10.2012 and last Notice dated 26.11.2024 issued by Ahmedabad Municipal Corporation deserve to be quashed and set aside.
4.1 Learned advocate Mr.Thakor further submitted that this is second round of litigation. Earlier Special Civil Application No.302 of 2013 was filed challenging earlier Notices dated 23.10.2012 and 02.01.2013. In the said petition, one of the grounds of challenge was with regard to lessor area mentioned against petitioners' original Page 8 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined survey no. 33/2. It is true that against petitioners' survey Nos.33/1 and 33/2, Final Plot was given, however area of original plot no 33/2, instead of 21044 sq.mtrs, was considered as 16289 sq.mtrs. Thereafter, upon hearing of petition, this court vide order dated 06.09.2013 granted interim relief in terms of Para 8(e) of the petition. Thereafter, upon pleadings being completed, the petition was heard finally, wherein revenue authority was directed to consider application of the petitioners, seeking correction in measurement in relation to survey No.33/2. Liberty was also reserved in favour of the petitioners to revive the petition in case of difficulty.
Since, application of the petitioners seeking correction in measurements of survey no.33/2, was not decided, with the allegation of willful disobedience of the directions dated 14.07.2016, the petitioners moved an application seeking revival of captioned writ petition. This court allowed Misc. application and revived the petition to its original file. Despite pendency of above petition, respondent No.26- Ahmedabad Municipal Corporation, once again issued Notice dated 28.10.2024, which was challenged by filing amendment application. Therefore, since application of the petitioners seeking correction in measurement is pending, appropriate Page 9 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined direction may be issued to respondent - revenue authority to correct the measurement and then to consider the petitioners case for grant of final plot against his original plot.
4.2 Learned advocate for the petitioners further submitted that other grounds may also be considered. Prior to Notice dated 02.01.2013 directing the petitioners to vacate the land for proposed road, the petitioners were neither served with any Notice nor they were heard. This aspect is in violation of principle of natural justice and therefore, the notices deserve to be quashed and set aside.
4.3 Learned advocate for the petitioners submitted that it may be considered that actual area of survey No.33/2 is 21044 sq.mtrs., which is confirmed by DILR (Page-35) and since respondent Nos.5 and 6 have not corrected the revenue records and Town Planning Authority has not considered the correct measurement, prejudice has been caused to the petitioners. Therefore, revenue authority may be directed to consider and rectify the error as held by this court in case of Manilal Devjibhai Solanki V/s. State of Gujarat and others in Special Civil Application Page 10 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined No.14500 of 2010. Once rectification is done, direction may be issued to Town Planning Authority to allot Final Plot with corrected measurement against old revenue survey No.33/2.
4.4 Learned advocate further submitted that since correction is not done in the measurement of survey no. 33/2, Draft Town Planning Scheme may not be implemented, directing the petitioners to give peaceful vacant possession of plot no 33/2.
4.5 Further, proposed Draft Town Planning Scheme covers residential houses, temple and other structures for livelihood. Demolition would cause prejudice to the petitioners, which is also referred in the objections raised. Therefore, the State may be directed to do variation in the Draft Town Planning Scheme to the above extent. In this case, it is reiterated that before finalization of Draft Town Planning Scheme No.241, the petitioners were not heard with their objections. With the objections pending, order passed being in breach of principles of natural justice, finalization of Draft Town Planning Scheme and Notice dated 23.10.2012 followed by subsequent Notice dated 26.11.2024 deserve to be Page 11 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined quashed and set aside.
4.6 On contention of revival of this petition and interim relief granted therein, learned advocate by placing reliance on the decision of Hon'ble Supreme Court in the case of Vareed Gecob V/s. Sosamma Geevarghese reported in 2004(6) SCC 378, submitted that in view of revival of main petition, the earlier order of interim relief gets revived, and in view of continuation of interim relief, the Notice dated 26.11.2024 issued by Ahmedabad Municipal Corporation being in breach of direction, appropriate action may be initiated against respondent No.26 and its erring officer.
5. Opposing the petition, learned Government Pleader Mr.G.H.Virk for respondent Nos.2 and 3 submitted that earlier this petition was filed seeking to quash and set aside the Draft Town Planning Scheme No.241 (Nana Chiloda) so far as it relates to survey Nos.33/1 and 33/2 of Nana Chiloda (Naroda), Taluka & District: Gandhinagar and therefore Notice dated 23.10.2012 (Annexure "J" Page-47) was challenged. An alternative prayer seeking to direct the revenue authority (Mamlatdar) to make correction in Village Form No.7/12 for measurement of Page 12 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined survey No.33/2 was made. It was prayed that so far as survey No.33/2 is concerned, the correct measurement is 21044 sq.mtrs. and not 16289 sq.mtrs.; and therefore, the Mamlatdar, Gandhinagar may be directed to correct revenue record (7/12 extract). By way of interim relief, stay was sought against effect and implementation of Notice dated 23.10.2012 Annexure -J. That petition was heard and by an order dated 06.09.2013 of this Court, while admitting the petition, stay was granted in terms of para 8(e). Thus, the effect and implementation of eviction Notice dated 23.10.2012 was stayed under order dated 06.09.2013. Thereafter, the said petition was heard and after having bi-parte hearing, an order dated 14.07.2016 was passed disposing of the petition with certain directions. Under the order dated 14.07.2016, the petitioners were directed to approach respondent Nos.5 and 6, and respondent Nos.5 and 6 were directed to redress the grievance of the petitioners within 15 days from their applications. The petitioners thereafter were further directed to approach Town Planning Officer with corrected record to redress the grievance. Time was given to complete exercise within two months from the date of order. It was held in the order that alignment of the road will not be changed. Accordingly, the petitioners Page 13 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined approached respondent Nos.5 and 6 (revenue authority) seeking correction in revenue record in relation to measurement of survey No.33/2. The said application was decided by an order dated 12.08.2016. Since under order dated 12.08.2016, no decision was taken by revenue authority, the petitioners made an application seeking revival of the petition and the same was revived by an order dated 14.07.2016. However, at the time of revival, interim relief earlier granted in terms of 8(e) was not continued and therefore, in absence of any order of continuation of any interim relief, the submission made in the amendment application of continuation of Interim relief is wrong. Therefore, the order dated 28.10.2024, of continuation of interim relief was on erroneous facts. The interim relief dated 28.10.2024 may not be continued and notice dated 28.10.2024 issued by Ahmedabad Municipal Corporation may be permitted to be implemented.
5.1 Further, since the subject land was transferred from AUDA to Ahmedabad Municipal Corporation, Notice dated 28.10.2024 was issued and there is no illegality in issuance of Notice dated 28.10.2024. Notice dated 28.10.2024 was responded by filing representation dated 08.11.2024. Thereafter, pursuant to finalization of Draft Page 14 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined Town Planning Scheme No.241 (Nana Chiloda), another Notice dated 26.11.2024 was issued. The said Draft Town Planning Scheme No.241 (Nana Chiloda) was sanctioned where subject land is allotted for 30 mtrs. public road. Since the Town Planning Scheme is for public purpose, peaceful Vacant possession of entire land was taken except the land of the petitioners. The petitioners are not vacating premises since last more than 11 years. Learned Government Pleader further submitted that by virtue of section 48-A of the Act, upon sanctioning of Draft Town Planning Scheme No.241 (Nana Chiloda), all land specified under section 40(3) vests with the authority free from all encumbrances. In support, reliance is placed on decision of this court dated 18.07.2018 in the case of Ashokkumar Ramanlal Shah V/s. State of Gujarat in Special Civil Application No.15298 of 2017 and allied matters, as also the decision dated 09.04.2018 passed by Division Bench of this court in the case of Iqbal Ibrahim Qureshi V/s. State of Gujarat in Letters Patent Appeal No.401 of 2018 in Special Civil Application No.3359 of 2018.
5.2 Learned Government Pleader further submitted that grievance of the petitioners that no opportunity of Page 15 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined hearing was provided, is contrary to the facts on record. Prior to sanctioning of Draft Town Planning Scheme No.241, the procedure contemplated under the provisions of the Act, was followed. Further, relief sought in this petition seeking to direct the revenue authority to make correction in 7/12 extracts will not fall within the purview of jurisdiction of this court. The petitioners, against their original plot, are given final plot and if any correction will be made pursuant to the application of the petitioners, it will be open for the petitioners to raise their claim accordingly, at a future date. In other words, at this stage, in view of sanctioning of Draft Town Planning Scheme No.241 (Nana Chiloda), the land vests with the competent authority and therefore, Notice issued dated 23.10.2012 followed by Notices dated 28.10.2024 and 26.11.2024 are in accordance with law. Therefore, this petition being devoid of merits, deserves to be rejected.
6. Learned Assistant Government Pleader Mr.Sahil Trivedi supported the contention canvassed by learned Government Pleader Mr.G.H.Virk for respondent Nos.2 and 3. Learned Assistant Government Pleader further submitted that as on date, the petitioners have not Page 16 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined challenged the order dated 12.08.2016 of not considering his application seeking correction in the revenue record. Therefore also, the present petition deserves rejection.
7. Considered the submissions and documents on record, revisitation of facts would be necessary.
7.1 Sanctioning of Draft Town Planning Scheme No.241 (Nana Chiloda) under section 48(2) of the Town Planning Act by Notification dated 10.09.2012 is not in dispute. Upon sanctioning of draft Town Planning Scheme No. 241 (Nana Chiloda), against petitioners' original plot No.33, final plot no. 33/1 and 33/2 were allotted, wherein against survey No.33/1 area of 24484 sq.mtrs. has been referred and against survey No.33/2, area of 16289 sq.mtrs. has been referred. Thus, total area of original plot has been referred as 40779 sq.mtrs. In the notice dated 23.10.2012, it was stated that original plot with the area of 40779 sq.mtrs. is taken for development of town planning road, and accordingly the petitioners being owners were provided with an opportunity of hearing on 05.11.2012 between 12:00 pm to 2:00 pm. The petitioners responded to the Notice dated 23.10.2012 by raising their objections dated 12.11.2012. In the Page 17 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined objections, it was stated that petitioners are residing and using the subject lands for agricultural purpose also. Difficulties likely to be faced were narrated in the objections. Reference of survey No.33/2 being old tenure land having measurement of 21044 sq.mtrs. was referred in the objections. It was case of the petitioners that measurement referred against original plot no. 33/2 is erroneous and application seeking correction of measurement is made on E-dhara portal to Mamlatdar. Further, grievance of allotted plot no.33/2, in agricultural zone was also made. Request to allot some other plot free from all encumbrances is also made.
7.2 Thereafter, Notice dated 17.12.2012 was published inviting objections in relation to sanctioning of Draft Town Planning Scheme No.241 (Nana Chiloda). The petitioners in response to the public notice dated 17.12.2012, once again raised their objections dated 24.12.2012. Therefore, contention raised that the scheme was sanctioned without following principles of natural justice, in the opinion of this court, is contrary to the documents on record.
7.3 It is noticed that prior to challenge to Notice dated Page 18 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined 23.10.2012, petitioners had preferred application dated 13.04.2011 seeking correction in revenue record in relation to survey No.33/2. It is case of the petitioners that measurement shown in the revenue record of survey No.33/2, is erroneous since the petitioners are in possession of land admeasuring 5 Acre 08 Guntha, which comes to 21044 sq.mtrs. For correction in measurement, the petitioners had relied upon certain documents of 1926. Reliance on report of DILR measurement dated 04.06.1926, was also made. Accordingly, this court under order dated 14.07.2016 (Page-261) in Special Civil Application No.302 of 2013 directed the petitioners to approach respondent Nos.5 and 6 and thereafter further directed respondent Nos.5 and 6 to consider the grievance of the petitioners by passing order within stipulated time. Consequential direction to approach Town Planning Officer to consider measurement of Final Plot with corrected measurement if any was also directed. Thus, pursuant to direction of this court, revenue authority passed an order dated 12.08.2016 (Page-269) disposing of the application. Though application of petitioners seeking correction of measurements was rejected by an order dated 12.08.2016, the petitioners did not challenge the said order and instead made an Page 19 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined application seeking revival and the same was allowed.
8. In the above context, if the grievance of the petitioners is seen, then it is evident that notice dated 23.10.2012 followed by Notices dated 28.10.2024 and 26.11.2024 were challenged because the case of the petitioners was not considered for allotment of final plot recording correct measurement. It is case of the petitioners that though they were owners of original plot having 21044 sq.mtrs., they have been considered for allotment of final plot having lesser area of 16289 sq.mtrs. which is based on incorrect entry recorded in 7/12 extract and village form No.12.
9. Therefore, it cannot be ignored that upon finalization of Draft Town Planning Scheme No.241 (Nana Chiloda), the land in question vested with the competent authority for its implementation. It is also noticed that the Town Planning Authority has allotted final plot against original plot by placing reliance on revenue record. As per the provisions of the Act, Town Planning Authority is to consider the revenue records for allotment of final plot against original plot. Therefore, in the opinion of this court, there is no illegality by the Town Planning Page 20 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined Authority at the stage of issuing Notice dated 23.10.2012 while considering measurement of survey No.33/2 as 16289 sq.mtrs.
10. For any correction in revenue record, appropriate application is required to be made before the revenue authority and the Town Planning Officer is not the officer concerned with correction or otherwise of revenue entries. However, in this case, in the earlier round of litigation, by an order dated 14.07.2016, application filed by the petitioners' seeking correction in the revenue record was directed to be considered and accordingly an order dated 12.08.2016 (Page-269) was passed. As contended by the petitioners that the order dated 12.08.2016 may be erroneous order or without reasons but admittedly the said order has not been challenged till date. Therefore, at this stage, this court does not find any error in the action of respondents in issuing notices seeking peaceful vacant possession of land in question for implementation of Town Planning Scheme No.241 (Nana Chiloda). At this stage, it is not open for the petitioners to contend that till the correction is made as sought by the petitioners in the revenue record, Notice issued dated 23.10.2012 followed by Notices dated 28.10.2024 and Page 21 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined 26.11.2024 may not be implemented. It needs to be noted that though the Town Planning Scheme No.241 (Nana Chiloda) was Sanctioned vide Notification 10.09.2012, after a period of 11 years it is not implemented till date.
11. It would be apposite to refer to the decision of this Court dated 18.07.2018 in the case of Ashokkumar Ramanlal Shah (supra),wherein it is held as under:
"11. In view of the above, there remains no shadow of doubt that where the draft scheme has been sanctioned by the Government, the lands required for the purposes specified in the clauses (c), (f), (g) or (h) of Section 40(3) would automatically vest in the appropriate authority as per Section 48(A) and that the person, who is not entitled to occupy the land under the sanctioned draft scheme can be summarily evicted under section 48A(3) of the said Act, on the analogy of the provisions contained in section 68 of the Act read with Rule 33 of the Rules. When the Statutory vesting takes place as contemplated in Section 48A(1) of the said Act, the petitioners could not insist that they should be simultaneously handed over possession of the final plots proposed to be allotted to them under the Draft Scheme, before they are evicted from the subject lands. The purposes mentioned in Clauses (c), (f), (g) and (h) of Section 40(3) Page 22 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined are the public utility services, and therefore the statutory vesting under Section 48A(1) of the lands earmarked for such purposes is automatic. It is axiomatic that salus populi suprema lex that regard be had to be public welfare, is the highest law. The respondent authorities have sought to exercise their powers under section 48A(3) read with section 68 and Rule 33 after following due process of law and after giving reasonable opportunity of hearing to the all concerned including the petitioners. Hence, it could not be said that the respondent no.2 Corporation has acted arbitrarily or without any authority of law while issuing impugned notices and passing the impugned orders."
12. Further in the case of Iqbal Ibrahim Qureshi V/s. State of Gujarat (supra), it is held by this court as under:
"13. From the aforesaid provisions contained in the Act, it is clear that once the state government has sanctioned the draft scheme in September, 2012, all lands required by the respondent Corporation for the purposes specified in clauses (c),(f),(g),(h) of Section 40(3) of the Act shall vest absolutely in appropriate authority free from all encumbrances and provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if the sanctioned draft scheme were a preliminary scheme. Further, powers are given under Section 68 to Page 23 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined the appropriate authority that on and after the date on which a preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme shall be summarily evicted in accordance with the prescribed procedure. The appropriate authority is also empowered after giving notice in accordance with the provisions of the scheme to remove, pull down, or alter any building or other work in the area included in the scheme.
14. In view of the above, the contention of the learned advocate for the petitioners that at the stage of draft scheme, notice for eviction cannot be issued to the petitioners is misconceived. It is further required to be noted that respondent Corporation has followed the principles of natural justice and reasonable opportunity of being heard is given to the petitioners. Thus, there is a substantial compliance of the provisions of the Act and the Rules."
13. In view of foregoing reasons, this court deems it appropriate not to entertain this petition, while taking note of the submissions of respondents that the application preferred by the petitioners seeking correction in the revenue record, if accepted and if any changes are made in revenue records (7/12 extract), it is open for the petitioners to raise their claim before Town Planning Page 24 of 25 Uploaded by DIPTI PATEL(HC00191) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 01:20:51 IST 2025 NEUTRAL CITATION C/SCA/302/2013 JUDGMENT DATED: 03/07/2025 undefined Officer while allotting final plot in terms of provisions of the Town Planning Act.
14. With this, the present petition is dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. No order is to cost.
15. In view of dismissal of main petition, civil application if any, would not survive and disposed of accordingly.
sd/-
(MAUNA M. BHATT,J)
16. Learned advocate Mr.Vikram Thakor for the petitioners at this stage requested for continuation of interim relief, which was granted earlier. The said request has been strenuously opposed by learned Government Pleader for respondent Nos.2 and 3.
17. In view of the reasons recorded hereinabove, request made on behalf of the petitioners is rejected.
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(MAUNA M. BHATT,J) DIPTI PATEL...
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