Patel Jayeshbhai Hirabhai vs State Of Gujarat
2021 Latest Caselaw 18740 Guj

     C/SCA/7974/2020                                 CAV ORDER DATED: 24/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7974 of 2020
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 8868 of 2020
==========================================================

PATEL JAYESHBHAI HIRABHAI & 7 other(s) Versus STATE OF GUJARAT & 2 other(s) ========================================================== Appearance:

MR NV GANDHI(1693) for the Petitioner(s) No. 1,2,3,4,5,6,7,8

MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 3 NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 24/12/2021 CAV ORDER

1. Both these petitions have been preferred by the

petitioners for the same cause of action and,

therefore were heard and decided together.

2. For the purpose of convenience, the facts of SCA

No.7974 of 2020 shall be referred to.

3. The petitioners have prayed for quashing and setting

aside the impugned notification dated 2.11.2011

issued by the Urban Development and Urban

Housing Department, Sachivalaya, Gandhinagar.

The grievance of the petitioners is that the 18 meter

road is being shifted towards the Final Plots which is

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without authority of law, unconstitutional and

violative under Articles 14 and 300A of the

Constitution of India.

4. The facts in brief are as under:

* It is the case of the petitioners that the

respondent especially the Himmatnagar Nagar

Palika is shifting the alignment of 18 meter wide T.P.

/ D.P. road towards their Final Plots under the guise

of notification under Section 48(2) of the Town

Planning Act. It is the case of the petitioners that

nine years after the notification was issued, the

respondent No.3, Himmatnagar Nagarpalika has

issued notice dated 9.6.2020 by wrongly assuming

powers under Section 68 of the Gujarat Town

Planning and Urban Development Act, 1976 (for

short, hereinafter referred to as `the Act') read with

Rule 33 of the Gujarat Town Planning & Urban

Development Rules, 1976 (for short, hereinafter

referred to as `the Rules') at the stage of draft Town

Planning Scheme.

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* It is the case of the petitioners that a notice

was issued by the petitioners through their advocate

on 10.6.2020 pointing out that the construction

permission and the development is being undertaken

in accordance with the permissions granted and

drainage lines and electricity poles have already

been installed. NA order has been issued in

September, 2012 and construction permission is

issued on 30.3.2016.

* It is the case of the petitioners that after the

Draft Development Scheme was sanctioned on

2.11.2011, the learned District Collector,

Himmatnagar by his order dated 10.4.2012 granted

NA permission for residential purpose. Construction

permission was granted on 1.12.2012 which was

revised on 30.6.2016. The petitioners have

completed construction on the majority part of the

area.

5. Mr. N.V. Gandhi, learned counsel for the petitioners

would submit that the impugned notice under

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Section 68 of the Act read with Rule 33 of the Rules

is without jurisdiction as Section 48(A) would not

apply in the facts of the case. He would submit that

the judgment of the Hon'ble Supreme Court in the

case of Babubhai and Company v. State of

Gujarat reported in AIR 1985 SC 613

categorically provided that on examination of the

scheme, in accordance with the decision in the case

of Babubhai (Supra), summary eviction cannot be

ordered and before passing an order, persons should

be afforded opportunity of hearing. The owner /

occupier should be heard. Reliance was also placed

on the decision in the case of Municipal

Corporation of City of Ahmedabad v.

Janakkumar G. Vyas reported in 2000(1) GLH

399.

* Mr. Gandhi would further submit that shifting

the said 18 meter wide T.P. road towards their Final

Plots is contrary to the provisions of Section 45(1) of

the Act. It has caused serious hardship to the

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petitioners as their construction will be demolished.

Reliance is also placed on Rule 33 and what is

prayed is that the principle of promissory estoppel

will apply.

* Mr. Gandhi, learned counsel for the petitioners

has also relied on the following decisions:

- Keshaji Devji Patel through PoA Mohanlal Keshavji v. State of Gujarat reported in 2007(1) GLR, 297,

- Bhatti Subhas Premji v. Secretary, Urban Development and Urban reported in 2012 GLHEL HC 228153 &

- Pareshbhai P. Raghvani v. State of Gujarat reported in 2016(o) AIJEL-HC 235803.

6. Mr. Nikhilesh J. Shah, learned counsel appearing for

the respondent - Nagarpalika would submit based

on the affidavit-in-reply that the prayer of the

petitioners for setting aside of notification dated

2.11.2011 is misconceived. It is not in fact the case

that the 18 meter road is shifted towards the Final

Plot of the petitioners. In fact, it is the petitioners

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who have shifted their construction beyond the

permissible limit and have encroached on the

proposed construction of the Town Planning road.

He would submit that when the permissions are read

namely; the Construction Permission and NA

Permission, it is evident that they were granted with

a specific condition that the petitioners will not be

putting up construction on the land where road is to

be laid down in the Town Planning scheme. He

would submit that the petitioners have committed

mistake in ignoring their piece of land which was

used as Kachha Marg and having commenced

construction on the boundary of their plots and

encroached on the road. All procedures under the

Town Planning Act were carried out. A DILR Report /

Map has been annexed and it is the case of the

petitioners who were required to remove the

structure to set the things in line with development

plan. The notice under Section 48(A) of the Act is

without jurisdiction. The petitioners were not either

the occupiers or owners of the plots in question at

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the time of framing and finalization of the Draft

Town Planning Scheme. Reliance placed on the

decision by the petitioners in the case of Babulal

(Supra) is misconceived.

7. Mr. N. J. Shah, learned counsel for the respondent -

Nagarpalika has relied on the following decisions:

* Vaishali Pratik Shah v. State of Gujarat reported in 2014 Law Suit (Guj) 1355,

* Vadodara Shaheri Jilla Khedut Mandal and others v. Vadodara Municipal Corporation reported in 2014 Law Suit (Guj) 823,

* Naranbhai Lallubhai Patel v. B.S. Oza reported in 1988 Law Suit (Guj) 36,

* Ramanbhai Hargovinddas Limbachia and 45 others v. State of Gujarat reported in 2016(3) GLR 2695 &

* Jethabhai Mepabhai Makwana v. State of Gujarat reported in 2005AIR (Guj) 132.

8. Having considered the submissions made by the

learned advocates for the respective parties, what is

evident from the perusal of the notification dated

2.11.2011 is that under Section 41(1) of the Act, the

C/SCA/7974/2020 CAV ORDER DATED: 24/12/2021

Himmatnagar Area Development Authority declared

its intention of making the draft Town Planning

Scheme No.2. A Resolution No.115 of the Board

declaring its intention to make the scheme under

Section 41(1) of the Act was passed on 27.11.2009.

On 8.12.2009, the intention was published in the

Gujarat Government Gazette under Section 41(2) of

the Act and Rule 61 of the Rules. The same was

published in the local Gujarati Newspaper under

Section 41(3) of the Act on 10.12.2009. It was

submitted to the State Government under Section

10(2) on 14.12.2009. Notice was issued on 11.2.2010

under Rule 17 of the Rules. 61, 95, 90 owners

furnished their objections. The Nagarpalika

sanctioned the Draft Scheme under Section 42(1) of

the Act inviting the objections and suggestions on

8.7.2010. The draft scheme was published in the

official Gazette as well as in the local newspaper on

12.7.2010 / 14.7.2010. It was submitted that the

sanction of the Government under Section 48(1) of

the Act placed on 16.9.2010 and was sanctioned on

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2.11.2011.

9. To the contention of Mr. Gandhi that the notice

under Section 68 of the Act read with Rule 33 of the

Rules is without jurisdiction is misconceived.

Reading Section 48(A) of the Act, particularly, sub

section (3) thereof would make it absolutely clear

that where a Draft Scheme has been sanctioned by

the State Government under sub Section (2) of

Section 48 of the Act, the provisions of Sections 68

and 69 shall mutatis mutandis apply to the

sanctioned Draft Scheme as if sanctioned Draft

Scheme was a preliminary scheme. In view of the

statutory operation, the contention of the petitioners

is misconceived.

10. What is also evident is on reading the notification

that the notification had been issued on 2.11.2011.

Reading the Development Permission and the NA

permission of the year 2020, it is apparent that a

specific mention was made in these permissions that

they are granted subject to the Draft Town Planning

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Scheme. On the date when the notification of

2.11.2011 was issued, the petitioners were neither

the owners nor occupiers of the land and, therefore,

the contention that the notice is misconceived, is

outrightly baseless. As rightly pointed out by Mr. N.

J. Shah in view of the judgment of this Court in the

case of Ramanbhai Hargovinddas Limbachia

(Supra), the petition is premature. It will be in the

fitness of things to reproduce Paragraph Nos.3.1 to

3.4 of such decision, which read as under:

"[3.1] Now, therefore, so far as those who are in occupation and /or purchased the plots / lands after the draft Town Planning Scheme came to be sanctioned, they have no legal, valid title and therefore, they cannot make any grievance when the sanctioned draft town planning scheme is being sanctioned considering section 48 of the Town Planning Act qua the land which is required for 36 meter Town Planning Road. As per Section 48A of the Town Planning Act where a draft scheme has been sanctioned by the State Government under subsection (2) of Section 48, all lands required by the appropriate Authority for the purposes specified in Clause (e), (f), (g) or

(h) of subsection (3) of section 40 shall vest absolutely in the appropriate Authority free from all encumbrances.

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[3.2] As observed hereinabove, even as per section 49 of the Town Planning Act on or after the date on which a draft scheme is published on section 41, no person shall, within the area included in the scheme, carry out any development unless such person has applied for and obtained the necessary permission for doing so from the appropriate authority. Thus, the date on which the draft scheme is published under section 41 of the Town Planning Act, restriction on the development of land shall apply, which would mean that when the land in question is earmarked for the Town Planning Road purpose, the same cannot be used for any other purpose.

[3.3] Considering section 48A of the Town Planning Act and as the land in question is needed for 36 meter road under the sanctioned Draft Town Planning Scheme, the provision of sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if sanctioned draft scheme were a preliminary scheme. Under the circumstances, when the land in question is forming part of Town Planning Road of 36 meter and therefore, by virtue of section 48A(i) of the Town Planning Act, the said land shall vest absolutely in the appropriate Authority free from all encumbrances on the date on which the draft scheme is sanctioned under section 48(2) of the Town Planning Act and thereafter when the impugned orders are passed in

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exercise of powers under Sections 48A, 67 and 68 of the Town Planning Act and Rule 33 of the Town Planning Rules, the same cannot be said to be either illegal and/or contrary to the provisions of the Town Planning Act. The action of the respondent Corporation / appropriate Authority is absolutely in consonance with the provisions of the Town Planning Act more particularly section 48A of the Town Planning Act. Under the circumstances, the learned Single Judge has rightly dismissed the main Special Civil Application.

[3.4] Now, so far as the submission on behalf of the petitioners that there is no justification of having 36 meter road as the present road, which is available, cater the needs of the traffic is concerned, it is not either for the petitioners and/or even for the Court to consider whether there is any justification of having 36 meter road or not.

Whether there is a need of 36 meter road or not is left to the wisdom of the expert body and the appropriate Authority considering the public interest."

11. In view of the aforesaid categorical findings, the

petitions are misconceived and are premature in

view of the fact that they are against the sanctioned

draft Town Planning Scheme and the petitioners

have an ample opportunity to represent their case

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before the Town Planning officer, who would be

appointed under Section 50 of the Act.

12. With the aforesaid reasons, the petitions are

dismissed. Interim Relief, if any, stands vacated

forthwith. Rule / Notice, if any, stands discharged.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA