Gujarat High Court
Lataben D/O Shivlal Patel (Korat) ... vs State Of Gujarat on 6 October, 2021
Bench: Ashutosh J. Shastri
C/SCA/13365/2021 ORDER DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13365 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13719 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13659 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13560 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 14364 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13513 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 14393 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 14363 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 14395 of 2021
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LATABEN D/O SHIVLAL PATEL (KORAT) W/O SHAILESHKUMAR
PANSURIYA
Versus
STATE OF GUJARAT
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Appearance:
MR AR THACKER(888) for the Petitioner(s) No. 1
SHIVANG A THACKER(7424) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
MR ADITYASINH JADEJA, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 06/10/2021
COMMON ORAL ORDER
1. Present group of petitions is arising out of the common question
of law and facts. In substance, learned advocates appearing for the
respective sides have requested to deal with and decide the same
conjointly and as such, considering the request and the joint
submission, the Court has taken up the petitions for hearing by
treating Special Civil Application No.13365 of 2021 as a lead matter
and for the sake of convenience, the facts are taken from the said
petition. So far as the lead matter, i.e. Special Civil Application
No.13365 of 2021, is concerned, same is arising from the following
C/SCA/13365/2021 ORDER DATED: 06/10/2021
background of facts:-
1.1. Originally, the land bearing Survey No.105/1 of village Vavdi,
admeasuring 36 Acre and 37 Gunthas belonged to one Patel
Dharamshi Thakarshi Korat (grandfather of the petitioner) with other
lands having possession prior to 1947. That by virtue of promulgation,
name of Patel Dharamshi Thakarshi Korat was mutated in the
revenue record, vide entry No.14 dated 30.10.1955 and entry No.130
dated 11.5.1964 for Survey No.105/1 of village Vavdi, admeasuring 36
Acre and 37 Gunthas. Thereafter, various family partitions took place,
as a result of which, the petitioner became owner of the land bearing
Survey No.105/1 Paiki-2 of Mouje Vavdi admeasuring 6722 Sq. Mtrs.
(Khata No.399). It is the further case of the petitioner that he is owner
of the land bearing Survey No.105/1 Paiki-2 admeasuring 6722 Sq.
Mtrs., the same being an agricultural land and the petitioner is in the
area now included in Rajkot Municipal Corporation, earlier the land
was under Rajkot Urban Development Authority.
1.2. On 16.6.2020, respondent No.3 Rajkot Municipal Corporation
declared its intention to frame the Draft Town Planning Scheme No.25
(Vavdi) under Section 41(1) of the Gujarat Town Planning and Urban
Development Act,1976 and on 16.6.2020, at the meeting of its General
Board in this regard, Public Notice was published in daily newspaper.
1.3. Thereafter, vide letter dated 8.12.2020, respondent No.3 called
upon the petitioner to attend the Public Meeting, to be held on
15.12.2020 at 10.30 a.m. at the office of Rajkot Municipal Corporation
for explaining the details of the said Scheme to the persons affected
and also invited objections and suggestions. It is further case of the
petitioner that thereafter, on 17.12.2020, respondent Nos.3 and 4 had
published an advertisement in the local daily newspaper 'Fulchhab'
declaring that within three months, they will submit Draft Scheme to
C/SCA/13365/2021 ORDER DATED: 06/10/2021
the Government being Draft Town Planning Scheme No.25 (Vavdi),
Rajkot. The advertisement clearly mentioned that the Draft Town
Planning Scheme has not been submitted to the State Government
under Section 42 of the Act, but it will be submitted within three
months as per the notice. Consequent upon such declaration, on
13.1.2021, the Town Planning Officer called for objections and
suggestions from the public at large, and also convened a public
meeting and in response to that, the petitioner made a detailed
representation to all the authorities ventilating various grievances,
including the grievance of deemed permission under Section 29(4) of
the Act and the same was submitted on 13.1.2021.
1.4. Subsequently, there was no reply or response from the
respondents, as a result of this, the representation was made on
18.2.2021, reiterating the very same objections but, the authorities
have neither given any personal hearing nor passed any order and
since the petitioner wanted to develop the land, made an application
with a requisite fees on 12.6.2021, seeking development permission
from the respondent No.3 under Section 29(1) of the Town Planning
Act, 1976 prior to declaration of the intention. However, respondent
Nos.3 and 4 rejected the same, which came to be challenged by way of
Special Civil Application No.4064 of 2021, 4067 of 2021 and 4069 of
2021, in which notices have been issued and are pending for further
consideration.
1.5. According to the petitioner, in the afore-mentioned Special Civil
Applications, affidavit-in-reply was filed on behalf of the respondent
No.3- Town Planning Officer on 15.6.2021, in which the following
observations were made:-
"........The objections and suggestions received from
interested parties were examined and appropriate decision
rejecting the same was taken and relevant portion thereof
C/SCA/13365/2021 ORDER DATED: 06/10/2021
is annexed herewith and marked as Annexure-F."
1.6. It is the case of the petitioner that thereafter, respondent No.3
has forwarded the Draft Town Planning Scheme No.25 (Vavdi) Rajkot
to respondent No.1, i.e. the State Government, for sanction on
9.3.2021 and it is the case of the petitioner that till date, the
respondent No.3 has not sanctioned the Draft Town Planning Scheme
and this has been noticed by the petitioner as the respondent No.3
has communicated to the petitioner on 24.3.2021. As a result of this,
once again, on 3.8.2021, the petitioner made a representation to the
respondents with a request to consider the said objections while
sanctioning the Draft Town Planning Scheme No.25. With this request
to consider the objections before the sanction of the Draft Town
Planning Scheme, present group of the petition raising almost similar
issue with respect to this very scheme has been brought before this
Court by exercising the jurisdiction under Article 226 of the
Constitution of India. Almost similar reliefs are prayed for and as
such, the relief clause contained in the lead matter is reproduced
hereunder:-
(A) To issue a writ of mandamus or a writ in the nature of
mandamus or any other appropriate writ, order or direction,
directing the respondents to provide copies of documents
and details demanded by petitioners in representation dated
13.1.2021, 18.2.2021 and 3.8.2021 and give opportunity of
personal hearing to the petitioner and thereafter pass
detailed reasoned order dealing with objections of petitioner
dated 13.1.2021, 18.2.2021 and 3.8.2021 made to all the
respondents before sanctioning Draft T.P. Scheme No.25
(Vavdi) Rajkot in the interest of justice.
(B) Pending admission, hearing and final disposal of the above
Special Civil Application, to restrain the respondents from
sanctioning Draft T.P. Scheme No.25 (Vavdi) Rajkot
submitted by respondent No.3 without providing copies of
documents and details demanded by petitioner I his
representation dated 13.1.2021, 18.2.2021 and 3.8.2021
and giving opportunity of personal hearing to petitioner and
thereafter pass detailed reasoned order dealing with
objections of petitioner dated 13.1.2021, 18.2.2021 and
C/SCA/13365/2021 ORDER DATED: 06/10/2021
3.8.2021 made to all the respondents before sanctioning
Draft T.P. Scheme No.25 (Vavdi) Rajkot in the interest of
justice.
(C) ............"
2. Learned advocate Mr. Avinash Thacker, assisted by learned
advocate Mr. Shivang A. Thacker has contended that the petitioners
have raised multiple grievances in the Scheme, which is now sent for
sanction, and said objections are required to be considered by the
authority as implementation of the Scheme will have an impact on the
petitioner's portion of land. It has been submitted that time and again,
representations in the form of objections have been made on
13.1.2021, 18.2.2021 and 3.8.2021, but none of them have been
decided nor responded, which has constrained the petitioners to
approach this Court with the aforesaid reliefs, by raising multiple
submissions. Mr. Thacker has submitted that under the Scheme of
the Town Planning Act, the authorities are under an obligation to
consider the objections raised by the persons who are going to be
affected and as such, the objections raised by the petitioners will have
to be dealt with by the respondent authority.
3. For the purpose of substantiating this submission, learned
advocate Mr. Thacker has referred to one decision delivered by the
Coordinate Bench of this Court dated 7.9.2015 in Special Civil
Application No.6752 of 2012 and has pointed out that the law
discussed in this judgment is so far not altered and as such, the
respondents are required to examine the objections of the petitioners
before sanctioning the Town Planning, otherwise, irreversible situation
will be created.
4. As against the aforesaid submissions, learned Assistant
Government Pleader Mr. Adityasinh Jadeja, appearing for the State
authority has submitted that it goes without saying that under the
C/SCA/13365/2021 ORDER DATED: 06/10/2021
provisions of the Town Planing Act, before sanctioning the Draft Town
Planning Scheme, the objections have to be dealt with by the State
authorities and as such, the petition is premature in view of the fact
that remedy yet is available and has submitted that the decision
which has been referred to by learned advocate for the petitioner in
which also, after discussing the provisions, Hon'ble Court has found
the petition as premature and as such, with certain observations,
same came to be disposed of and in view of this, Mr. Jadeja has
submitted that except the observations contained in para 19 of the
said judgment, no further orders are required to be passed in his
respectful submission. It has been submitted that as and when the
petitioner will approach the authority with a request to consider the
objections or the objections which may be further filed, concerned
authority will examine and deal with the same in accordance with the
previsions of the Act and the relevant Rules and therefore, requested
to dispose of the petition as premature.
5. Having heard learned advocates for the parties and having gone
through the decision which has been referred to by both learned
advocates appearing for the respective sides, the relevant observations
contained in para 17 to 20 are required to be considered, which are
quoted hereunder:-
(17) In any event as the Draft Scheme is pending before the State
Government for its sanction. under Section 48 of the Act, this
Court should not examine feasibility of the Draft Scheme in
question and therefore petition is premature. In similar the se
the Division Bench of this Court in the case of Naranbhai
Lallubhai Patel Vs. B.S.Oza, 1988 (1) G.L.R. 646 has taken a
similar view that the petition is premature.
Even considering filed b by the respondent affidavit-in-reply
No.2 authority considering the scheme of the Act and as such
except the land which is forming part of any reservation /
allocation, which is provided under Section 48 (A) of the Act for
rest of the land, majority of Association which the even is land
if forming part of of the the Draft the petitioner Scheme is
C/SCA/13365/2021 ORDER DATED: 06/10/2021
sanctioned thereafter Town Planning Officer shall be appointed,
as provided under Section 50 opportunity of to the Act, who
shall give the petitioner-Association, as envisaged under the
relevant Rules, more particularly Rule 26 of the Rules before
even preparing the preliminary scheme.
(18) Even considering one of the contentions that there are certain
circulars of Government, which does not the permit State any
direction as has been given by respondent No.2 is without any
basis, as no such circular has been relied upon by the learned.
advocate for the petitioner, however, as far as some land of the
petitioner-Association, which may be affected by the proposal
of the scheme, which is at Draft Town Planning stage by virtue
of Section 48A of the Act can be taken care of by giving
appropriate directions to the State Government.
(19) In light of the aforesaid therefore petition is not entertained as
the the same is premature. Respondent No.2 while considering
the Draft Scheme, as submitted by respondent No.2 under
Section Government that have shall been 48 of consider the all
Act, State objections filed by the petitioner Association before
respondent No.2. It would also be open to the petitioner to file
further objections to the State Government at this stage. filed
by the Such objections petitioner shall be latest on 30.09.2015.
State Government shall consider the of same in accordance
with the provisions the Act and the Rules, before giving
sanction to the Draft Town Planning Scheme as submitted by
respondent Section 48 (2) of the Act.
(20) In light of the aforesaid therefore present petition is not
entertained as same is premature. NOTICE discharged. interim
relief vacated. No costs.
6. In view of the aforesaid observations which have been made, the
only order which can be passed by the Court is to permit the
petitioners to make a request to the State authority for expeditious
disposal of their pending objections and if any further objection the
petitioners would like to make, same shall be made before the State
Government within a stipulated period and same shall be considered
in accordance with law, if so far Scheme is not finalized.
7. To the aforesaid proposition, both learned advocates have no
grievance and rather requested to dispose of the petition in the light of
the observations which are contained in para 19 of the said decision.
C/SCA/13365/2021 ORDER DATED: 06/10/2021
Hence, following order is passed which would meet the ends of
justice:-
(1) The petitioners are permitted to approach the respondent
State authority with a request to consider all the objections
which are filed and in addition to those, if further objection
to be submitted, same shall be submitted within a period of
TWO WEEKS from today.
(2) As and when such request is made by the petitioners, the
respondent State Government shall consider the same in
accordance with the provisions of the Act and the Rules
before giving sanction to the Draft Town Planning Scheme
No.25 (Vavdi) Rajkot submitted to it under Section 48 of the
Act, if so far not sanctioned.
(3) It is made clear that this Court has not expressed any
opinion on merit with regard to any of the objections of the
petitioners and it is independently left it open to the State
authority to consider and decide the same strictly in
accordance with law,.
8. In light of the aforesaid observations and directions, present
lead petition, being premature, is not entertained and stands rejected.
Notice is discharged.
9. In view of the order in the lead matter, all petitions with very
same observations and directions accordingly stand disposed of.
Notices issued therein stand discharged.
(ASHUTOSH J. SHASTRI, J)
OMKAR
