Devyani M Mehta W/O Mahendra Mehta vs Chief Executive Officer
2021 Latest Caselaw 15260 Guj

     C/SCA/178/2019                              ORDER DATED: 28/09/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 178 of 2019
                                With
             R/SPECIAL CIVIL APPLICATION NO. 3984 of 2019
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                DEVYANI M MEHTA W/O MAHENDRA MEHTA
                               Versus
                      CHIEF EXECUTIVE OFFICER
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Appearance:
MR BHARAT JANI(352) for the Petitioner(s) No. 1,2,3,4
MR KURVIN DESAI, AGP for the Respondent(s) No. 2
MR ADIL R MIRZA(2488) for the Respondent(s) No. 1
MR AS VAKIL(962) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                           Date : 28/09/2021

                        COMMON ORAL ORDER

1. RULE. Learned Assistant Government Pleader Mr. Kurvin Desai for the respondent-State, learned advocates Mr. Adil Mirza for respondent No.1 and Mr. A.S. Vakil for respondent No.4 waive service of notice of Rule.

2. By way of these petitions under Article 226 of the Constitution of India, common grievance is tried to be raised. Learned advocates appearing for the respective parties have requested the Court to take up both the matters together and dispose of by common order. Accordingly, the Court has considered the request and treated Special Civil Application No.178 of 2019 as a lead matter for sake of convenience.

3. So far as the lead matter, i.e. Special Civil Application No.178 of 2019 is concerned, the same is filed by four petitioners on the premise that they are the members of the respondent No.4 society and they are owners and occupiers of plot Nos.139,140,129 and 128 in Shangrila village and by way of registered sale deeds, they have become owner

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and occupier. The total area of the original plot of respondent No.4 society, as a whole, was 1,59,257 Sq. Mtrs. and the same was reconstituted and allotted Final Plot, admeasuring 1,30,618 Sq. Mtrs. and Form No.F came to be issued by Ahmedabad Urban Development Authority (AUDA).

4. It is the case of the petitioners that Draft Town Plan (Ghuma) was submitted for its sanction to respondent No.3 on 24.6.2011 after statutory deduction of 17.98% from the original plot. The deduction is required to be made in proportion from all plots allotted by the society to its plot holders while submitting the Draft Town Planning Scheme for sanction.

5. The petitioners have asserted that respondent No.4 society has written a letter on 28.2.2011 to the petitioner that the Draft Town Planning Scheme is going to be published by AUDA and the society has already raised objection on 13.9.2010 and accordingly, informed the petitioners to submit their respective objections. The petitioners have separately tendered their objections against the proposed deduction from the land practically about more than 50% (upto 60% for Town Planning Road) by virtue of Section 40 in respect of making Town Planning Scheme, which provides for allotting appropriate land in course of development likely to be used for residential or commercial or industrial or for building purposes by making provision for allotment of reservation of land for the road (Section 40(3)(e)(jj) and as per the amended provision, allotment of land from total area covered under the scheme is to the extent of 15% for the road. The said objections were written on 11.3.2011 by the petitioner Nos.1 and 2, whereas the petitioner No.3 has raised objection before respondent No.1 vide communication dated 14.3.2011. Further objections also came to be sent to the respondent No.2 on 8.4.2011. Again detailed objections were tendered before respondent No.2 on 8.4.2011 for

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consideration against the Draft Town Planning Scheme No.2 (Ghuma). Additionally, yet another representation also came to be made on 25.4.2011 to the respondent No.2 for kind consideration, but same have not been dealt with at all and according to the petitioners, these objections have remained undecided and kept as it is, at the stage of preparation of the Draft Town Planning Scheme and at the stage of sanction of Draft Town Planning Scheme. Copy of the letter dated 30.8.2016 is attached to the petition compilation. The petitioners have asserted that after approaching the respondent authority, again personally even joint objections have also been tendered on 12.10.2016 and on 24.10.2016 by the respective petitioners with a further letter by petitioner Nos.1 and 2 on 17.10.2018, but despite repeated representations having been made, same have not been responded at all. If these representations are not to be dealt with, like this, according to the petitioners, there will be an irreversible situation likely to be created since the authorities have threatened the petitioners and informed to demarcate the land for taking possession for 36 meter TP road. According to the petitioners, before demarcation and taking possession of the land for TP Road, the authorities are under an obligation to issue notice under Section 48(A) of the Amended Town Planning Act to the respective plot holders. No such notice is given, neither any opportunity is given nor any intimation is given and the authorities have started making of TP Road. The petitioners have asserted that if this activity of construction of road is allowed, practically half of the land of the petitioners will go away, which would create an irreversible situation for the petitioners and without complying with the statutory provisions, if the scheme is to be implemented, there will be a failure of compliance of the mandatory duty cast upon the authority, which has given rise to filing of this lead petition for claiming the following reliefs:-

      C/SCA/178/2019                              ORDER DATED: 28/09/2021




     A)    this Hon'ble Court may be pleased to issue an appropriate

writ, order or direction in nature of Mandamus or any other appropriate writ, order of direction quashing and setting aside the impugned action of the respondent No.1 and 2 in preparing and submitting draft T.P.Scheme No.2 without deciding petitioners T.P.Scheme and by (Ghuma) the to respondent No.3 objections sanctioning respondent No.3 of the said without considering and deciding the representations and objections, declaring them in violation. of statutory provisions of the Town Planning and Urban Development Act, 1976 and violation of principles of natural justice. in the

(B) pending hearing, admission and final disposal of this petition, this Hon'ble Court be pleased to restrain the employees, servants, representatives authorities etc. of the respondent from taking possession of the demarcated portion of land of the petitioners for constructing 36 meter wide T.P.Road.

(C) this Hon'ble Court may be pleased to pass such other and further relief (s) as the facts and circumstances of the present require in the interest of justice; case may

(E) this Hon'ble Court may be pleased to provide for the cost of this petition;

6. In Special Civil Application No.3984 of 2019, four petitioners of this very society of the lead matter, i.e. Jagdishnagar Co-operative Housing Society Ltd., are the plot holders and owners by virtue of registered sale documents from the original allottees. Petitioner Nos.1 and 2 are the joint owners of plot No.86, whereas petitioner Nos.3 and 4 are joint owners of plot No.117 of Shangrila village, in which the respondent No.4 society is set up. Rest of the facts are almost similar. The Court without detailing out has seen that in the similar way of the petitioners of the lead matter, these petitioners have also raised their respective objections and prayed for the identical reliefs. Hence, with a view to avoid unnecessary burden of the order, detailed facts are not hereunder narrated, but both these petitioners are having identical grievance against the respondent authorities for non-compliance of

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the statutory obligations which led them to approach this Court.

7. On 25.2.2019 in Special Civil Application No.3984 of 2019, the Court was pleased to issue notice, whereas in the lead matter, notice appears to have been issued on 9.1.2019 and thereafter, the pleadings having been completed, both have come up for consideration before this Court and with consent and request of learned advocates, hearing has commenced.

8. Learned advocate Mr. Bharat Jani appearing on behalf of the petitioners in both these petitions has submitted that by virtue of the action of implementation of the Town Planning Scheme and possible construction of the TP road, there will be a deduction of more than 50% of the plots of the petitioners, which would lose its viability for all time to come and for that very reason, at relevant point of time, from beginning, the petitioners went on tendering objections in writing before the respective authorities. But these objections have been kept as it is, the same have not been dealt with at all nor any opportunity is given to the petitioners in any form and at present, the scheme has been sent for finalization pending before the TP officer. Had the opportunity been given from initial stage itself, the authority would have realized the situation that it is on account of the inaction on the part of the authorities, the situation is created which is to the prejudice of the petitioners. The mechanism provided under the the Statute, namely the Town Planning Act, is quite full-proof where at various stages, affected persons' objections are to be examined, considered and dealt with, but here none of the objections has been dealt with at all and the same have been kept in as it is form and as such, the authorities have failed in discharge of their obligation which has badly affected the petitioners.

9. The concept of granting an opportunity is well recognized from

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the Statute itself, but to strengthen his submission, learned advocate Mr. Jani has submitted few decisions delivered by this Court, i.e. in the case of Keyur D. Gandhi & 2 Vs. State of Gujarat & 1 reported in 2010 SCC OnLine Guj 4417 and in the case of Kishanbhai Hargovandas Patel & 1 Vs. State of Gujarat & 5 reported in 2010 SCC OnLine Guj 1279 and by referring to the relevant observations contained in the said decisions, the request is reiterated to consider the representation and that to carry out further process of finalization.

10. Learned advocate Mr. Jani has further submitted that the authority appears to have yet not finalized the scheme so far as it relates to the present petition is concerned and for that purpose, a news item from a local daily is submitted before the Court which is of 28.2.2020 and by referring to this, has contended that so far as TP road variation is concerned, same is decided to deliberate and therefore, when this is the present situation, the objections which are pending on the file deserve to be adjudicated upon by examining and granting opportunity to the petitioners. Since the scheme has not yet been finalized, there is a possible hope for the petitioners that the authority will consider the same in right spirit, hence requested to dispose of the petitions by issuing appropriate direction in the line on which the earlier decisions have been taken on the issue of affording of an opportunity.

11. As against the aforesaid submissions, learned Assistant Government Pleader Mr. Kurvin Desai appearing on behalf of the respondent No.3 has submitted that a detailed affidavit-in-reply is filed in the lead petition and has indicated that at present, Draft Town Planning Scheme No.2 (Ghuma), which is prepared and submitted by AUDA is now pending before the TP officer for finalization where the petitioners can raise their objections and suggestion(s) before the TP officer with relevant authentic documents regarding their grievance

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which will be decided by the TP officer according to the provisions of the said Act and the petitioners have ample opportunity to raise their grievance and objection. So, according to Mr. Desai, the petitions being premature are not required to be entertained.

12. In view of the aforesaid submission, learned advocate Mr. Bharat Jani appearing on behalf of the petitioners in both the petitions has requested that if this be the stand, the petitioners may be permitted to approach the respondent No.3 authority with a fresh objection in addition to the pending objections which are already part of the record and the authority be directed take decision thereon in in accordance with law after granting appropriate opportunity and further has submitted that such direction be issued, so that no irreversible situation is created as the authorities are out to carry out the work. However, be that as it may, Mr. Jani, under instruction, has submitted that pending representation, additional opportunity to represent be conferred upon the petitioners so that the grievance can be ventilated effectively before finalization of the scheme in question and has requested not to express any opinion on merit since the TP officer is to examine and take appropriate decision on the objections of the petitioners.

13. Learned advocate Mr. Adil Mirza appearing on behalf of the respondent No.1 and learned advocate Mr. A.S. Vakil appearing on behalf of respondent No.4 have also not raised any much resistance in view of the fact that the respondent No.3 has taken a stand in the affidavit-in-reply, hence left it to the discretion of the Court to pass suitable order in the interest of justice.

14. Having heard learned advocates appearing for the parties and having gone through the material on record, it is evident that the petitioners have raised specific objection from beginning and it is not

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in dispute that such objections have remained unattended and as such, the respondent authorities are under obligation to comply with the mandate of the Statute.

15. In view of the aforesaid background of facts, the decisions which have been relied upon by learned advocate Mr. Jani are to some extent assisting the petitioners and as such, the relevant observations contained in the said decisions, the Court deems it proper to reproduce hereunder:-

(1) Para 8 and 10 of the decision in the case of Keyur D. Gandhi (supra) are reproduced hereunder:-

8. It is an undisputed position that the petitioners have not been heard and afforded an opportunity to submit their objections before substantial modification in the Scheme has been made and on this short ground alone, the petition deserves to be partly-allowed by giving appropriate directions to the respondents and without entering into the merits of the other grounds raised by the petitioners. Even otherwise, the learned Senior Advocate appearing for the petitioners has confined his arguments to this ground alone.

10. In view of the fact that the petitioners have not been heard and afforded an opportunity to submit their objections before modification of the Scheme and the observations of the Court made in the judgment quoted hereinabove, the following order is passed:

(I) The petition is partly-allowed to the extent that Draft Town Planning Scheme No.204 (Makarba - Sarkhej - Okaf - Ambli - Vejalpur) only insofar as it incorporates proposals/ modifications affecting the lands of the petitioners being Survey No.738/2 and 738/3 and the immediately adjoining land touching the road affecting the petitioners' land of Village: Makarba, District: Ahmedabad, is quashed and set aside.

(II) The modified Draft Town Planning Scheme submitted by AUDA to the State Government shall be treated as a notice to the petitioners, inviting their objections/ suggestions to the proposals in respect of their land. The petitioners may submit their objections/ suggestions to the proposals within a period of two weeks from today and the AUDA shall take a decision thereon, after affording an opportunity of hearing to the petitioners, within a period of four weeks from receipt of the

C/SCA/178/2019 ORDER DATED: 28/09/2021

objections/ suggestions.

(III) Respondent No.2 - AUDA shall communicate its decision on the objections/ suggestions submitted by the petitioners to them and would thereafter submit the Draft Scheme, as published or modified, to the State Government for sanction in accordance with Section 47 of the Act.

(IV) In case the petitioners are aggrieved by the decision of AUDA, the petitioners are granted liberty to take appropriate proceedings in accordance with law to challenge the said decision and it will be open to the petitioners to raise all available contentions in such proceedings, including those raised in the present petition.

(V) It is clarified that this order shall not be treated as a precedent as it has been passed on the peculiar facts, as narrated in the petition.

(2) Para 22 to 25 of the decision in the case of Kishanbhai Hargovandas Patel (supra), are reproduced hereunder:-

22. The sum and substance of the aforesaid discussion is that in a case where the State Government sanctions the Preliminary Town Planning Scheme with modification in the Preliminary Town Planning Scheme suggested by the Town Planning Officer and instead of Final Plot "A" suggested by the Town Planning Officer under the Town Planning Scheme, Final Plot "B" is allotted to the land owner at the time of sanctioning the Preliminary Town Planning Scheme No.65 of the Town Planning Act i.e. modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer to the aforesaid extent, before such a modification, an opportunity is required to be given to the original land owners to submit their objections and suggestions and at that stage, principles of natural justice is required to be read into. Under the circumstances, the impugned Preliminary Town Planning Scheme No.6(Unja) sanctioned by the State Government with respect to the lands of the petitioners - original land owners deserves to be quashed and set aside.

23. Now the next question is what further steps to be taken by the State Government. It was suggested that the Preliminary Town Planning Scheme No.6 sanctioned by the State Government allotting Final Plot No. 294 to the petitioners - original land owners in lieu of their original Survey No.296- Original Plot No.207 admeasuring 4876 sq.mtrs. be treated as Notices to the petitioners - original land owners and other persons likely to be affected inclusive of the private respondent Nos.5 and 6 so that the petitioners and private respondent Nos.5 and 6 and any

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other affected persons can submit their objections and suggestions to the same.

24. Mr.Desai, learned senior advocate appearing on behalf of the petitioners and Mr.Navin Pahwa, learned advocate appearing on behalf of the respondent Nos.5 and 6 have stated at the bar that the petitioners and the respondent Nos.5 and 6 respectively shall submit their objections and suggestions against the same at the earliest.

25. In view of the above and for the reasons stated above, the petitions succeeds. The impugned Preliminary Town Planning Scheme No. 6 sanctioned by the State Government in exercise of the powers under sec.65 of the Act in so far as land belonging to the petitioners and/or qua the petitioners - original land owners is hereby quashed and set aside. Let the Preliminary Town Planning Scheme sanctioned by the State Government with respect to the lands in question of the petitioners be treated as a notice inviting objections and suggestions and it will be open for the petitioners and respondent Nos.5 and 6 and all other persons likely to be affected, to submit their objections and suggestions at the earliest and thereafter, the State Government is directed to take appropriate decision in accordance with law and on merits, after considering the objections and suggestions, if any, received and considering sec.65 of the Act. All the questions, whether such a proposed modification would be a substantial modification or of correcting an error, irregularity or informality are kept open. Rule is made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.

16. Here, in the present case on hand, it is jointly submitted by both the sides that Town Planning Scheme No.3 (Ghuma) is so far not finalized and yet pending before the TP Officer. The affidavit-in-reply filed by respondent No.3, i.e. Mr. Rameshkumar Mithabhai Patel, In- charge Town Planning Officer, Town Planner-2, Unit-2, Ahmedabad Town Planning and Valuation Department, Gujarat State, Gandhinagar has affirmed such affidavit on 6.4.2019 and today also, it has been projected before the Court that no further steps are taken in respect of finalization of the Town Planning Scheme No.3 (Ghuma) and same is pending before the TP officer. Para 10 of the said affidavit is reproduced hereunder:-

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10. I say and submit that, Draft Town Planning Scheme No. 2 (Ghuma) was prepared and submitted by AUDA and matter. also pertaining to the Respondent Authority i.e. Respondent No. 1 (Chief Executive Officer, AUDA), so other pertains to the AUDA. Now, Town Planning Scheme No.2 (Ghuma) is pending before the Town Planning Officer for finalization. Petitioner can raise objections/ suggestions before Town Planning Officer with relevant authentic documents regarding their grievance which will be decided by Town Planning Officer according to provisions of the Said Act. Petitioner has ample opportunities to raise their objections, so petition is premature.

17. Learned Assistant Government Pleader has submitted that this is the situation as on date and the finalization has not taken place and further, even in February 2020 also, it is decided to deliberate in respect of Town Planning Scheme No.3 (Ghuma) in respect of TP road changes.

18. When this being the situation confirmed by both the sides, even today before this Court, one thing which is emerging out clearly is that the objections of the petitioner are possible to be considered by the Officer before whom the Town Planning Scheme No.3 (Ghuma) is pending for finalization and further, the petitioners being the plot holders and are affected persons have undisputedly so far not been given any opportunity, as required. As a result of this, on the basis of the aforesaid undisputed situation prevailing as on date, and as submitted by both the sides, the Court relying upon the said representation during the course of hearing, is inclined to dispose of the petitions on the following lines which would meet the ends justice and as broadly suggested by both the sides during the course of hearing:-

(1) The petitioners, as desired, are permitted to approach the respondent No.3 authority before whom the Town Planning Scheme No.3 (Ghuma) is pending for finalization within a period of TEN DAYS from today with a request to examine

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and deal with the objections which are pending on the file and which may be submitted, if so desired.

(2) As and when such approach is made by the petitioners before the respondent No.3, respondent No.3 is directed to take appropriate decision in accordance with law and on its own merits after considering the objections and suggestions which may be received and after granting opportunity of hearing to the petitioners, take appropriate decision.

(3) Since the apprehension is voiced out that irreversible situation may not be created, respondent No.3 shall see to it that such decision making process on objections of the petitioners shall be concluded within a period of FOUR WEEKS from the date of approach by the petitioners along with the copy of the present order.

(4) It is made clear that this Court has not expressed any opinion on merit, on the request of the petitioners. It shall be independently decided by respondent No.3 on its own merits in accordance with law and this direction is issued upon the authority in view of the aforesaid peculiar background of fact.

19. In view of the aforesaid observations and directions, present petitions stand DISPOSED OF. Rule is made absolute to the aforesaid extent.

(ASHUTOSH J. SHASTRI, J) OMKAR