Maheshbhai Mangaji Thakor vs State Of Gujarat Through The ...
2022 Latest Caselaw 3996 Guj

     C/SCA/4203/2019                                ORDER DATED: 05/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 4203 of 2019
                               With
            CIVIL APPLICATION (DIRECTION) NO. 1 of 2021
                                 In
            R/SPECIAL CIVIL APPLICATION NO. 4203 of 2019
                               With
          CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2021
                                 In
            R/SPECIAL CIVIL APPLICATION NO. 4203 of 2019
                               With
         CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2022
                                 In
            R/SPECIAL CIVIL APPLICATION NO. 4203 of 2019

================================================================
            MAHESHBHAI MANGAJI THAKOR & 2 other(s)
                          Versus
     STATE OF GUJARAT THROUGH THE SECRETARY & 3 other(s)
================================================================
Appearance:
MR KV SHELAT(834) for the Petitioner(s) No. 1,2,3
MS JYOTI BHATT, AGP for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
================================================================

 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 05/04/2022

                                ORAL ORDER

1. This petition under Article 226 of the Constitution of

India is filed by the petitioners praying inte alia as under :-

"[A] The Hon'ble Court be pleased to admit and allow the present petition by issuing a writ of mandamus and/or appropriate writ, order or direction in the nature of mandamus holding that the Draft TP Scheme No.21 (5th Varied) Ambawadi in so far as the petitioners' properties at Survey No.187 are concerned, is bad, inoperative, as null and void, unconstitutional, illegal scheme in view of the jurisdictional lapses and non observance of mandatory procedure by

C/SCA/4203/2019 ORDER DATED: 05/04/2022

the appropriate authority u/s 41 to 48 of the GTP Act read with Rule 16 to 24 of the GTP Rules, in so far as the petitioners are concerned and an appropriate writ be issued not to execute or implement such Draft TP Scheme against the petitioners in view of the non-observance of the mandatory procedure rendering the draft scheme illegal and invalid;

[B] The Hon'ble Court be pleased to issue appropriate writ, order or direction quashing and setting aside the sanction given by the State Government to the Draft TP Scheme No.21 (5th Varied) under Section 48 which is without issuing any notices, without hearing and without considering the claims of the petitioners and notice under Section 68 Rule 33 of the GTP Act and the communication dated 14/2/2019 purporting to be final order and proposed action of the respondent authorities in threatening for immediate demolition without hearing the petitioners, without any adjudication be declared as illegal, with incorrect particulars, arbitrary, unreasoned, result of non application of mind, malafide and without following the principles of natural justice, without hearing the petitioners and without considering their contentions and be pleased to direct the respondent authorities to give opportunity of personal hearing after serving proper statutory notices and to adjudicate the same by passing reasoned, speaking orders as contemplated in Babulal's case 1985 (2) GLR 883 in the interest of justice;

[C] The Hon'ble Court be pleased to issue appropriate writ order or direction directing that the revenue authority under the Devasthan Inam Abolition Act be directed to decide the claims of the Petitioners including adjudication under Sections 8 & 9 and directing the Respondent Authorities to amend the F From accordingly and then to follow the required statutory procedure as contemplated under Section 41 to 64 of GTP & UD Act qua the petitioners.

2. It is a case where petitioner Nos.1, 2 and 3's

predecessor-in-title Mangaji Thakor was occupying the land

C/SCA/4203/2019 ORDER DATED: 05/04/2022

bearing Survey No.187 admeasuring 14 Gunthas, i.e., 1416 Sq. Mt.

from the Shahe Alam Roza Trust who were the Inamdars holding

the property and on coming into operation of the The Gujarat

Devasthan Inams Abolition Act, 1969 the Petitioners predecessor

continued the legal possession given to him for residence, self-

employed business as dairy and for rearing cattle.

2.1 It is submitted by learned Advocate for the petitioners

that so far as Survey No.187 is concerned, though the same in

revenue record is shown in the name of "government", the fact

remains that the District Collector on 30.09.1978 had given specific

orders cancelling those Entry Nos. 1727, 1728 in the name of the

government and has held that under the provisions of the Abolition

Act it is necessary to hold inquiry and to decide who is the inferior

holder/authorized holder/unauthorized holder and gave directions

to the Mamlatdar and only after its outcome if it is found that the

occupier is a legal occupier on the date of abolition of Inami Lands,

7 & 12 record has to be changed accordingly.

2.2 It is submitted that no adjudicatory procedure took

place though directed by the Collector in 1978. Furthermore,

Shahe Alam Roza Trust though its sole Trustee Musamiyan who

was the Inamdar of these lands had given it to the petitioners

predecessor and that even in a Revision Application No.93/1998

and 118/1998, the District Collector, Ahmedabad on 05/12/1998

came to the conclusion that there is no question of including the

C/SCA/4203/2019 ORDER DATED: 05/04/2022

name of Inamdar, i.e. Shahe Alam Roza Trust and that as per the

earlier decision of the Collector in 1978 it is necessary to

adjudicate under the concerned Inam Abolition Act as to whether

the petitioners' predecessor are inferior holder/authorized holder

or not.

2.3 It is the case of the petitioners that in the original TP

Scheme No.21 of Ambawadi, the petitioners' property was not

affected and as per the Second Revised Development Plan 2021

which came to be sanctioned by the Government, the subject

Survey No.187 even in 1970 was in occupation by the petitioners

and their predecessors and they are having several cows and

buffaloes which are being housed with the petitioner on this plot of

land.

2.4 That, a notice dated 02.05.2018 came to be served on

the petitioner Nos.1 and 2 on 18.05.2018 which is purported to be

a notice under Section 68 Rule 33. In survey No.187 the kaccha

and pukka construction of shops and residential houses exist ever

since 1949. The petitioners applied on 25.05.2018 to the municipal

authority for personal hearing to point out that right from stage of

Section 41 of the GTP & UD Act the authority has not followed any

mandatory procedure nor has issued any notices to the petitioners

and have proceeded to frame Draft TP Scheme.

2.5 The petitioners had filed Civil Suit No.1521 of 2018

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before the City Civil Court, Ahmedabad in which even the

application for interim relief is pending and the defendants have

not filed any reply and though it was pointed out to the respondent

authority that in view of pendency of hearing, Section 68 Rule 33

notice may not be finally decided without personal hearing. The

respondent authorities have still proceeded to decide the notice

and have passed an order dated 14.02.2019 whereby only seven

days time is given upto 21.02.2009, failing which demolition and

coercive action is threatened.

2.6 Under Section 41 of the GTP Act intention to frame a

draft town planning scheme was done for publishing the draft

scheme under Section 42. It is submitted that the development

plan of the subject area do not show any requirement of providing

60 feet wide road. It is further submitted that under the provisions

of Rule 16 an advertisement in local news paper and the procedure

as contemplated under rule 16 was not followed by the Ahmedabad

Municipal Corporation. It is further submitted that under the

provisions of Rule 17, the Ahmedabad Municipal Corporation under

Section 42 being the appropriate authority is bound to call meeting

of the owners of the land included in a town planning scheme by a

public notice as well as by individual notice to every owner whose

address is known to the appropriate authority. When the

Ahmedabad Municipal Corporation is knowing about the addresses

of the petitioners it is mandatory for Ahmedabad Municipal

C/SCA/4203/2019 ORDER DATED: 05/04/2022

Corporation to issue notice under rule 17 which is a mandatory

requirement since this is the step after initial survey is made by the

corporation and is a vital step under Section 42 so that the basic

principles of natural justice and are not followed in case of

occupiers-owners of residential properties.

2.7 It is submitted that in the present Draft TP Scheme No.

21 (5th Varied) Ambawadi is broadly consisting of not so many

residents that for this proposed 60 ft. road, 98% of the residents

will be deprived of their residential houses and livelihood either

fully or partly, more so, when such tenements are as small as 50 to

60 Sq. Mt. size . The respondent-corporation officers have come on

14.02.2019 and threatened the demolition by use of bulldozers and

also approached a few of the petitioners and threatened them and

other affected persons with immediate dispossession and

demolition of petitioner's residential ownership property without

following the due process of law.

2.8 Learned advocate has taken this Court to the

Annexure'A' which is an order under Section 108 of the Land

Revenue Code which is a revenue proceedings pertaining to

authorized occupant in connection with land which originally is an

Inami Land the and effect of the same in the revenue record.

Hence, when such proceedings are pending the rights of the

petitioners are required to be recognized.

C/SCA/4203/2019 ORDER DATED: 05/04/2022

2.9 It is also submitted that the municipal tax bills and

other corporation documents indicate that the respondent

corporation acknowledged existence of petitioners at the place.

3. As against this, learned Advocate for the respondent-

corporation submitted that the petition is filed bereft of relevant

details and/or particulars showing petitioners, valid title along with

the rights transfer flowing from the original owners, there are no

records produced to show legal and valid permissions for the

construction and usage over the land.

3.1 It is submitted that there was no implementation of the

scheme made for the concerned areas in past and there being no

proper urban planning and requisite infrastructure and amenities

along with the fact of there being heavy traffic, for which the

respondent-authority is required to undertake infrastructural

works, which are permissible only under clause (c), (f), (g), (h) of

sub section 3 of Section 40 as the land occupied comprised under

town planning road of 18 Mtrs.

3.2. It is submitted that in view of sanctioning of the draft

scheme, the land required would vest with the authority, free from

all encumbrances, i.e. land vests with the implementing authority

and thereby notice dated 02.05.2018 was served as per the

provisions of Section 48A, for implementing the scheme for the

purposes under clause (c), (f), (g), (h) of sub-section 3 of Section

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40, under section 68 read with Rule 33 of the Act. That, opportunity

was also provided with a notice dated 19.11.2018 and thereafter

final order dated 16..02.2019 was passed and duly served.

3.3 It is submitted that the aforesaid road has been

strategically prepared at stretch of around 1 k.m. wherein all other

encumbrances have already been removed and there are only 2

(two) structures, which remains in the entire stretch of the road.

4. The Court has heard learned Advocates for the parties

and perused the documents placed on record. The subject land in

petition comprised under town planning road of 18 mtrs, being

carved out from Jansi Rani's Statue to Shyamal-Manekbaug Road,

is strategically prepared at stretch of around 1 Kms., wherein all

major encumbrances have already been removed. The said road is

vital and essential part of the development of the scheme, which

has been prepared and sanctioned by following due process of law.

Moreover, the land in question is of the ownership of the State

Government.

5. From the records, it appears that the intention of the

TP Scheme No.. 21 (Ambawadi) 5" Varied was declared on

4.12.2013 and the same was published in govt. gazette on

4.12.2013 and public notice was also issued in Gujarat Samachar,

Divya Bhaskar and Sandesh Newspapers on 6.12.2013. The owners

meeting was held on 27.05.2014 and public notice was also issued

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in Gujarat Samachar Newspapers on 23.05.2014. The draft scheme

was prepared upon following the procedure under the Act and the

same was also published in govt. gazette on 19.07.2014 and public,

notice also issued in Sandesh and Gujarat Samachar Newspapers

on 20.07.2014, whereafter the draft was submitted, which came to

be sanctioned by the state government, vide notification dated

23.10.2017.

6. Division Bench of this Court in case of Ramanbhai

Hargovinddas Limbachia & Ors. Vs. State of Gujarat & Ors.,

reported in 2016 (3) GLR, 2694 has held with regard to town

planning public road even at the stage of draft town planning,

where, in para-3.3, it is held as under:-

"[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 48-A(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 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

C/SCA/4203/2019 ORDER DATED: 05/04/2022

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."

7. In case of Satyadev Parasnath Panday & Ors. Vs.

State of Gujarat & Ors., reported in 2015 (2) GLR, 1475, this

Court in paras-14 and 15 has held as under:-

" 14. The another facet of the submissions referring to Rule 17 that the individual notice as contemplated under Rule 17 has not been issued to the petitioners who are the owners, is also misconceived. The notice is required to be served to the owners of the land which is included in the Town Planning Scheme. It refers to public notice as well as individual notice to every owner for the purpose of inviting objections and also to elicit public opinion under Section 42. Though the submission has been made that the individual notice has not been issued, in fact the public notice which has been issued would serve the purpose or rather the public notice is issued to public at large to invite objections or to make suggestions. The individual notice which is said to have been issued is out of abundant caution to individual owners. At this stage, it is also required to be considered that the learned Senior Counsel Shri Prashant G. Desai with much emphasis has stated that let the petitioners point out that their names appear in the record as the owner of the individual notice as required to be issued to the owners only. Meaning thereby, unless the petitioners show that their names appear as owner, they cannot make a grievance. However, assuming without admitting that the petitioners are the owners, it can hardly be said that the petitioners had no opportunity of making representations and / or rather admittedly they had made the representations which would be sufficient in compliance with the rules of natural justice. Therefore, as it has been observed time and again, the rules of natural justice do not apply in abstract and it has to be considered with background of the facts and the courts have

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therefore evolved the doctrine of prejudice. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in 2000 (7) SCC 529 in the case of Aligarh Muslim University and ors. v. Mansoor Ali Khan, wherein it has been observed:

"The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43, Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved."

It is required to be noted that the Wade's Administrative Law (5th Edn., pp. 472- 75) has also stated as follows:

"It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirement of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."

Therefore, having regard to the judicial pronouncement, where the Courts have evolved the aforesaid doctrine of prejudice to ascertain whether the breach of natural justice has caused or is likely to cause any prejudice, even if there is some lapse in compliance with the rules of natural justice. Therefore, it refers to a situation where the person complaining of violation of rules of natural justice is required to show any prejudice caused to him.

15. It refers to the situation where the person complaining of the violation of rules of natural justice is required to show any prejudice caused to him. In the facts of the case the petitioners cannot say that any prejudice is caused to them. Therefore the submissions made by learned Counsel Shri S.P.Majmudar with much

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emphasis on this aspect about the individual notice having not been served and therefore it is in violation of principles of natural justice has no merit. One more aspect which is required to be considered is that the allotment of the flat was made to the petitioners but as stated by learned Counsel Shri S.P.Majmudar that as it was not suitable and therefore the petitioners had not given the option for the same. This has another aspect with regard to the allotment of the another land or the compensation. The issue involved in the present case is with regard to the purported exercise of power and the scheme under which the land is covered. Section 48(A) referred to vesting of land in appropriate authority. It provide:

"(1) Where the draft scheme has been sanctioned by the State Government under sub-section (2) of Section 48, (hereinafter in this Section, referred to as 'the sanctioned draft scheme') all lands required by the appropriate authority for the purposes specified in clause (c), (f), (g) or (h) of sub-section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances."

Thus, the provisions of Section 48(A) clinches the issue that the land in question would vest in the authority after the draft scheme has been approved by the State Government. As stated in the affidavit in reply, the draft scheme has been approved by the State Government and therefore the submissions cannot be accepted. Again, before the scheme can be finalized under Section 52, it is required to give the notice following the procedure under Rule 26 and the representation could be made. A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Babulal Badriprasad Varma v. Surat Municipal Corporation and ors. (supra) which has been referred to by both the sides. The Hon'ble Apex Court has discussed with regard to the provisions of this very Act and the procedure which is required to be followed. The Hon'ble Apex Court referring to this very issue with regard to the service of the special notice has made the observations and the issue was kept open though it was observed that the Appellant is not entitled to any relief even if it was obligatory to serve a special notice. In the case before the Hon'ble Apex Court, it was the tenant who had made a grievance and therefore referring to Rule 21 and 26, the observations have been mad that

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the person interested could make the representation whereas Rule 17 as stated above refers to the owners of the land who would have the opportunity. Thus, the scheme of the Act and the Rules take sufficient care that the opportunity is granted. In any case as observed when the public notice is also issued for the same purpose, the underlying object or the purpose is to give a notice to the public at large and the person interested to make his suggestions or objections and the individual notice is by way of additional opportunity but it would not make the action or the procedure invalid. If such an interpretation is made that even though public notice is issued and the private or the special notice is not served it would make the entire procedure invalid, then the very object of the public notice as referred to in the statute is redundant and frustrated. Therefore the underlying object of the statute has to be considered and when the statute provides for the public notice as sufficient notice and when the legislature has also provided for a public notice, it cannot be interpreted in a manner which frustrate or negate the very provision of the statute."

8. On behalf of the petitioners, two unreported judgments

have been cited, first being in SCA No.8222 of 2011 dated

16.08.2012. This judgment will not be of any assistance to petition

as in the said petition, the stage was at stage of exercise of powers

under Section 48(2) of the Town Planning Act, where the draft TP

was sanctioned. It is held in the facts that the petitioner is entitled

to notice under Section 68, Rule 33 of the Town Planning Act and

the Rules. In the present case, such notices have been issued (see

Annexure-R3 on page No.170.) Similarly, the second unreported

judgment of this Court in SCA No.11301 of 2014 dated 14.10.2014

in fact goes against the petitioner, where, upon TP scheme being

sanctioned, would require handing over possession of the land

which forms part of the road and accordingly, directions are given

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in para-6 of the judgment.

9. The submission of learned Advocate for the petitioners

with regard to the authorized occupants' dispute in connection with

the Inam abolition and its pendency in the revenue authority, in the

opinion of the Court, with the final TP scheme, the nature of

ownership and issue regarding the petitioners' occupation through

the Inamdar (erstwhile) is of no consequence, especially when the

land in question is falling on a TP road. Moreover, the fact of

procedure prescribed under the Town Planning Act being followed,

the petitioners cannot raise this issue at rather belated stage.

10. This Court has perused the plan of the relevant portion

of draft town planning scheme No.21, Ambawadi (5th Varied). The

land in dispute is falling on the 18 mtr. wide road connecting two

major roads being 60 mtr. wide BRTS road and 30 mtr. wide road

leading to Anandnagar and as reported, except for the portions of

the land occupied by the petitioners, the TP road is already laid

down. There is no reason to disbelieve what is submitted by

learned Advocate for the respondent-Corporation.

11. In view of the aforesaid reasonings, the Court is not

inclined to interfere with the ongoing process of TP scheme No.21,

Ambawadi on the facts of this case. Needless to say that the

respondent-Corporation, while implementing the TP scheme, will

continue to follow the procedure as laid down under the Act. The

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petition stands dismissed accordingly. Ad interim relief granted

earlier stands vacated. No order as to costs.

12. Upon pronouncement, learned Advocate for the

petitioners prayed for indulgence insofar as grant of alternative

premises to the petitioners.

13. Though, there is no specific prayer in this regard and

considering number of petitioners before this Court being 3, the

Court deems it fit to observe that it is open for the petitioners to

make an application for alternative premises as per the policy of

the Ahmedabad Municipal Corporation for rehabilitation. Upon

such application being made, the Ahmedabad Municipal

Corporation shall consider the application in accordance with law

and the scheme applicable and outcome of such application be

communicated to the petitioners within a period of 3 months of

such application being received by the Ahmedabad Municipal

Corporation.

14. In view of the order passed in the main matter, Civil

Applications does nor survive. Disposed of accordingly.

(A.Y. KOGJE, J) SHITOLE