Sanjay Babubhai Patel vs State Of Gujarat
2022 Latest Caselaw 526 Guj

     C/SCA/540/2022                                      ORDER DATED: 17/01/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 540 of 2022

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                           SANJAY BABUBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR ABHISHEK R SHARMA(10751) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 2,3
MS JYOTI BHATT, AGP (99) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 17/01/2022

                                  ORAL ORDER

This petition under Article 226 of the Constitution of India is filed by the petitioners seeking direction to respondent no.2 authority to decide the objections dated 27/10/2021 and opportunity of hearing to the petitioners while such objections are being considered.

The petition pertains to Draft Town Planning Scheme No.77 (Vajdi Gadh) submitted to the State under Section 48 of the Gujarat Town Planning and Urban Development Act, 1976 ("the Act" for short).

Learned advocate for the petitioners drew attention of this Court to the order passed by this Court in Special Civil Application No.12295 of 2020 dated 08/10/2020 and submitted that in similar terms, the case of the petitioners may also be considered and the objections of the petitioners may be considered in its true perspective as the petitioners

C/SCA/540/2022 ORDER DATED: 17/01/2022

apprehend that the objection by the petitioners and exercise of consideration under Section 47 of the Act may remain empty formality and thereafter the petitioners may be remained remedy-less once the Town Planning Scheme is finalized.

Reliance is also placed by the learned advocate for the petitioners upon reported decision in case of Satyadev Parasnath Pandey and others vs. State of Gujarat and others reported in 2015 (2) GLR 1475, particularly para-12 of the decision.

Learned AGP, opposing the petition submitted that the Section itself is complete and provides for consideration of the objections. However, prayer of the petitioners for personal hearing is not provided for in Section 47 of the Act.

Having considered the submissions made by learned advocates for the respective parties and having perused the documents on record, the objections raised by the petitioners dated 27/10/2021 are within the stipulated period of publication of the Draft Town Planning Scheme and necessarily be dealt with as provided for under Section 47 of the Act.

At this stage, it would be appropriate to reproduce para- 12 of the reported decision in case of Satyadev Parasnath Pandey (supra) which indicates the purport of the objections and the manner in which it should be dealt with so that the exercise of consideration of the objection as contemplated under Section 47 of the Act does not remain an empty

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formality.

"12. The first aspect about the plan and the submission that the T.P.Scheme is not in conformity with the development plan require a little close scrutiny. As per the Scheme of the Gujarat Town Planning Act as stated the development plan is the broader outline with regard to the development of the area which may include a T.P.Scheme or more than one T.P.Scheme. Thereafter subject to the procedure as laid down in detail after inviting the orders and hearing the persons affected is prepared and finalized which itself becomes the Act or part of the Act. The variance of the Scheme is therefore not readily accepted and the purpose and the detailed procedure in the Act clearly refers to the detailed procedure like inviting the objections and consideration of the same by the authority. Therefore, it refers to the specific T.P.Scheme with a minute detail with regard to the implementation of the Scheme and the objections raised by the persons concerned. Therefore, there may be various objections or the grievance which are considered before finalizing. However, it may not be possible to accept the objections on the ground of inconvenience considering the appropriate object of the T.P.Scheme which is sought to be achieved for the purpose of fulfilling the development plan. In other words the development plan referred to the macro planning whereas the T.P.Scheme has reference to micro planning or the outline with regard to the proposed scheme of the development. It is at this stage as provided in the Act read with the Rules, the objections are invited and are considered in compliance of the rules of natural justice. Therefore once the scheme is approved and finalized it hardly calls for any interference by the court under Article 226. However, a useful reference can be made to the judgment of the Hon'ble Division Bench of this Court reported in the case Kashiben Wd/o. Pitamber Devchand & Anr. v. State of Gujarat & Anr. (supra) where the Hon'ble Division Bench has observed:

"A draft scheme or any scheme prepared under the Bombay Town Planning Act, 1954 can be processed further and finalised by virtue of Sec. 124 of the Gujarat Act - Once a final scheme is prepared it must be deemed to be part of the Act - The original owner loses all rights over the land, he is liable to be evicted, and

C/SCA/540/2022 ORDER DATED: 17/01/2022

he has no locus standi to file a writ petition."

The Hon'ble Division Bench has therefore considered the provisions of Bombay Town Planning Act vis-a-vis Gujarat Town Planning Act. However, referring to the judgment of the Full Bench of the High Court reported in 1977 GLR 549 - Saiyed Mohamad v.

Ahmedabad Municipal Corporation, it has also been clearly observed that once the land vests with the authority concerned as per the scheme, the scheme has become a legislative measure under which the rights of the parties have totally ceased to occupy the property and the power of eviction in such a context would be in the nature of an administrative power. It is required to be mentioned that before the scheme is finalized, however the care has been taken to provide an opportunity of raising an objection which could be considered. In fact Chapter-V of the Gujarat Town Planning and Urban Development Rules, 1979 include the publication of declaration and Rule 17 provide for meeting of the owners and framing of the tentative proposals. Section 44 of the Gujarat Town Planning and Urban Development Act referred to the contents of the draft scheme and Section 48 refers to the power of the State Government to sanction draft scheme. Section 47 referred to the objections to draft scheme to be considered. It provides that any person affected by such a scheme communicate in writing with regard to his objection and it is considered before finalizing the scheme. At that stage therefore while exercising the power for the sanction of the draft scheme and considering the objections the Government is required to strike a balance between the individual right and public purpose. Therefore, the doctrine of proportionality is attracted in such cases. In the facts of the case of the petitioners, the scheme has been sanctioned in exercise of powers under Section 48(2) of the Act. The affidavit in reply on behalf of the Corporation refers to this aspect when it has been specifically averred and contended:

"I submit that under the provision of Section 41(1) of the Gujarat Town Planning & Urban Development Act, 1976 (for short "the Act"), Surat Municipal Corporation declared its intention to make town planning scheme No.62 (DindoliBhedwad-Bhestan) and after following the procedure under Section 42 and after considering the objections and suggestions the Corporation submitted the said draft scheme to the State Government for sanction under Section 48(1) of the Act and the said draft scheme

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was sanctioned by the State Government by notification dated 2.7.2012. Annexed hereto and marked as Annexure-I is the copy of notification dated 2.7.2012 to this Affidavit. I submit that the State Government by notification dated 16.7.2012 appointed the Town Planning Officer under Section 50 of the Act."

Again it has been clearly observed referring to the submission that the T.P.Scheme is not in consonance with the draft development plan. It has been observed in the affidavit in reply:

"I submit that 45 meters road is passing through the said land which was in revised sanctioned development plan of 2004. I submit that said 45 meters road is practically a Ring road of about 25 kilo meters and while making the town planning scheme No.62 the said development plan road was shown as town planning scheme road looking to the physical situation on the site and the said road was made as town planning road in consonance with the development plan to the major extent. I submit that the development plan is macro level planning while town planning scheme is a micro level planning."

Further, in the affidavit in reply, it is further observed:

"I submit that the petitioner was having block No.505 which became OP No.144-A and 144-B admeasuring 71 and 10580 sq. meters respectively, against which the petitioner is given final plot No.144 in the draft scheme admeasuring 7141 sq. meters. I submit that the owners and occupiers of the said plot have made illegal construction, as submitted herein above and, therefore, the Corporation was obliged to give notice under Section 260(1) to the owners and occupiers. Annexed hereto and marked as Annexure-II is the copy of Notice under Section 260(1)." Further in paragraphs 13 and 14 of the affidavit in reply, it has also been specifically contended that: "I submit that the State Government sanctioned the draft scheme No.62 and, therefore, the notice was given under Section 68 read with Rule 33 as per the provision of Section 48(A) of the said Act for taking possession of the area which is going on town planning road and a show cause notice was given on 7.8.2012 for making representation against the said show cause notice. I submit that the petitioners filed their reply to the said show cause notice on 10.8.2012 and contended that since no compensation is given in respect of the area going in the town planning scheme road, the possession should not be taken. The persons interested were called for personal hearing on 30.8.2012 and on 30.8.2012 they requested to take into consideration the reply given on 10.8.2012.

I submit that on 3.9.2012 the persons interested give in writing that they should be given another plot in lieu of area going in town planning road in town planning Scheme No.62. Mean while this Hon'ble Court passed an order on 5.9.2012 and as per the directed in the said order, reasoned order was passed by the Corporation. Annexed hereto and marked as Annexure-V is the copy of order passed by the Corporation."

C/SCA/540/2022 ORDER DATED: 17/01/2022

In view of the aforesaid provisions of law, the Court does not find any reason to interfere with the ongoing proceedings, however, observes that the objection of the petitioners raised vide communication dated 27/10/2021 be taken into consideration by the authority in true perspective.

With the aforesaid observation, present petition stands disposed of.

Direct service is permitted.

(A.Y. KOGJE, J) ILA