Gujarat High Court
Nilamdevi Shivkumar Gren Alias ... vs Ahmedabad Municipal Corporation on 4 March, 2022
Bench: A.Y. Kogje
C/SCA/1247/2022 ORDER DATED: 04/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1247 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1249 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1248 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1252 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1251 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1262 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1264 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1272 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1273 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1274 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1276 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1277 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1265 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1266 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1536 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1591 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1555 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 3988 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 19919 of 2021
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CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 19919 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 184 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 19922 of 2021
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CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 19922 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 19923 of 2021
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R/SPECIAL CIVIL APPLICATION NO. 19924 of 2021
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CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 19924 of 2021
================================================================
NILAMDEVI SHIVKUMAR GREN ALIAS NILAMDEVI SHIVKUMAR JAIN
Versus
AHMEDABAD MUNICIPAL CORPORATION
================================================================
Appearance:
MR AADITYA KARNAVAT(11777) for the Petitioner(s) No. 1
MR ATUL SHARMA(11174) for the Petitioner(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 1,2
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 04/03/2022
ORAL ORDER
1. This group of petitions if filed against action of the
respondent-Corporation for evicting the petitioners from their
respective premises on the ground that the petitioners are
occupying land through which a town planning road under the
sanctioned Town Planning Scheme is passing.
2. As all the petitions are raising identical issues and are
opposed by the respondent-Corporation raising identical issues, at
the request of learned Advocates for the parties, all these petitions
are taken up for joint hearing and disposal. However, the facts are
taken from lead matters being SCA Nos.19923 of 2021 and SCA
No.1247 of 2022.
C/SCA/1247/2022 ORDER DATED: 04/03/2022
3. Learned Advocate for the petitioners submitted that the
present petitioner is residing with her family to the above
mentioned address mentioned in the petition. They are doing daily
labour work and earning for their livelihood. It is submitted that
the petitioner that the opponent no. 3 had addressed one notice
dated 18/09/2020 which is annexed as Annexure A under the
Gujarat Town Planning and Urban Development Act -1976, under
Sec. 48(A) and Sec. 68 Rule 33.
3.1 It is submitted that the said notice was given with the
attached Sketch No. 19 where the land which is shown in Yellow
line area should be vacated and possession should be given to the
Ahmedabad Municipal Corporation within 10 days from receiving
the above notice.
3.2 It is submitted that about 100 different Families are
staying with their family members which is situated at the Navjivan
Nagar, Near Bachunagar, Vatva, Ahmedabad from more than 20
years. All have purchased the houses and constructed the houses.
They are having the above houses and no any other places for their
living and livelihood.
3.3 It is submitted that suddenly opponent gave the notice
dated 18/9/2020, through the Gujarat Government Order / Tharav
No. GH/V/170 of 2010/TPS-112008-3730-L dated 23/12/2010, Draft
Town Planning Scheme. It is the case of the present petitioner that
C/SCA/1247/2022 ORDER DATED: 04/03/2022
the notice is given according to the Town Planning Scheme Sr. No.
128 (Vatva- Aslali) (Draft) Survey No.1200 allotted land of Main are
No, 241 from which 30.00 mtr. width T.P. Road has to be open, the
Draft Town Planning Scheme sanction.
3.4 It is submitted that the Authority had not considered
the written objection filled by the petitioner dated 5/10/2020 in
which all the details were narrated with the necessary and correct
information by producing the copies of sale deed of the property,
Electricity Bill, Municipal Tax Bills from which it is clear that the
petitioner is living to the place since long and it is the only
livelihood for the different people and their family members.
4. Learned Advocate for the petitioner in SCA No.1247 of
2022, in addition, submitted that he purchased a plot of land in the
year 2007 admeasuring about 81 square yards from one Hanifbhai
Rahimbhai Memon by way of sale deed. It is pertinent to mention
that the entire plot of land was developed by the said Hanifbhai
Rahimbhai Memon and his partners. The society is known as
Bachunagar Vibhag B. The petitioner has incurred substantial
expenditure as per his financial capacity to develop the said piece
of land to a dwelling house.
4.1 It is submitted that respondent no.2 has given tenement
no. 03421916690001B to the residential house of petitioner and
collects tax on annual basis. The residential house has been
C/SCA/1247/2022 ORDER DATED: 04/03/2022
categorized as 'Chawls'.
4.2 It is submitted that for the first time after a period of 10
years the petitioner was informed that the town planning scheme
no.128 (Draft) Vatva-Aslali has been given approval by the
Government of Gujarat vide resolution no. GH/V/170 of 2010/TPS-
112008-3730-L dated 23.12.2010.
4.3 It is submitted that pursuant to the provisions of
Section 48A of the Act, the land belonging to the petitioner vests
absolutely without any encumbrance in the Municipal Corporation.
The petitioner was further called upon to handover the vacant and
peaceful possession within a period of 10 days from the date of
receipt of notice. It is through this notice the petitioner for the first
time came to know that land is being taken away by the respondent
authorities.
4.4 It is submitted that during the personal hearing it was
represented to respondent authorities that petitioner has not been
put to notice in the past at any point of time and it is for the first
time that they have been informed to vacate their dwelling house.
Even they have set-out that there are vacant plots available not
very far away from the proposed TP road. However, respondent no.
2 categorically informed that since the TP scheme has been
approved, they cannot make any changes and the only way is to
demolish the petitioner's dwelling house.
C/SCA/1247/2022 ORDER DATED: 04/03/2022
4.5 It is submitted that impugned order nowhere provides
for allotting alternative piece of land for rehabilitation of the
petitioner and is therefore bad in eyes of law as also is contrary to
the benevolent policies of the State.
4.6 It is submitted that the respondent was very much
aware about the existence of the petitioner and his property as they
have been collecting municipal taxes on annual basis from the
petitioner for quite a long time. Even the notice to vacate and
handover the possession has been issued by the respondent
authorities.
4.7 It is submitted that the guidelines issued for preparing
town planning scheme as well as various decisions rendered by the
Hon'ble Courts including the Hon'ble Supreme Court no developed
area is to be disturbed in the TP scheme, rather the development
plan is to be formulated keeping in mind the development that has
already taken place.
4.8 Learned Advocate for the petitioner contended that
period of 10 years has lapsed since sanctioning of the draft TP
scheme and therefore, the authority ought to have undertaken
revision in the development plan, which entails a fresh survey for
revision of development plan. The respondent authorities have
failed to undertake this requirement of law and hence also, case of
the petitioner deserves consideration. Learned Advocate for the
C/SCA/1247/2022 ORDER DATED: 04/03/2022
petitioner relied upon decision of this Court in case of Manek
Culture Centre & Ors. Vs. State of Gujarat & Ors., in SCA
No.17873 of 2018 dated 31.01.2020 in support of his
arguments.
5. Learned Advocate for the respondent-Corporation
submitted that in view of the provisions contained in Act, 1976 read
with the Rules, 1979, the land in question is covered within the net
of draft town planning scheme No.128 (Vatva-Aslali). As per the
provisions contained under the Act, "the intention to prepare draft
town planning scheme was declared by the competent authority on
24.08.2007 under Section 41 of the Act. Thereafter, owners
meeting as contemplated under the provisions of law were held and
draft town planning scheme in question was published under
Section 42 of the Act on 09.05.2008. The owners meeting, as
contemplated under the Rule 17 of the Rules, 1979 was held on
19.04.2008. Thereafter the town planning scheme in question was
prepared and the same was submitted to the Government under
Section 48(1) of the Act on 07.08.2008, Ultimately draft town
planning scheme in question got it sanctioned from State
Government under Section 48(2) of the Act on 23.12.2010.
5.1 It is submitted that TP road in question is very
important patch of road, connecting to major portion of South Zone
and East zone, which connects to the Sardar Patel ring road. Thus,
in the interest of public at large, implementation of the draft Town
C/SCA/1247/2022 ORDER DATED: 04/03/2022
Planning Scheme in question qua Town Planning road in question
is very important and essential for the public at large. Therefore,
implementation of the 30,00 mtr TP road is essential and necessary
in the interest of public at large.
6. Having considered rival submissions of learned
Advocates for the parties and having perused documents on record,
it appears that as per provisions contained under Section 48A of
the Act, once the draft town planning scheme is sanctioned under
Section 48(2) of the Act, all lands acquired by the appropriate
authority for the purposes specified under clause (c), (f), (g) and (h)
of sub-section 3 of Section 40 shall vest absolutely in the
appropriate authority free from all encumbrances. Reading of
Section 40(3), 68A, 67 and 68 would make it clear that portion
which is forming part of proposed 30.00 mtr TP road is absolutely
vested in the respondent-corporation and the respondent-
corporation is empowered to implement draft town planning
scheme for the purposes mentioned under clauses (c), (f), (g) and
(h) of sub-section 3 of Section 40, as if for those purposes,
preliminary town planning scheme is sanctioned.
6.1 The purpose of laying down TP road is included under
Clause (c) of Section 40(3) of the Act. The powers and
interpretation of section 48A are no more res integra in view of the
settled law. This Hon'ble Court had occasion to deal with same
contentions and after considering settled legal propositions, this
C/SCA/1247/2022 ORDER DATED: 04/03/2022
Hon'ble Court vide its common oral order dated 18.07.2018 passed
in Special Civil Application No.15298 of 2017 was pleased to
discard the contentions of the concerned petitioners and powers
and authority under Section 48A were recognized in favour of
answering corporation. Even the Hon'ble Division Bench in its
judgment dated 09.04.2018 passed in Letters Patent Appeal No.401
of 2018 had reiterated that in view of settled legal proposition,
once the draft "town planning scheme is sanctioned, in view of
Section 48A of the Act, the appropriate authority i.e, Answering
Respondent, has all rights to implement the scheme as if the same
is sanctioned TP scheme. The respondent-Corporation is
empowered to implement the TP road and the petitioner cannot
stall the implementation of the scheme as least qua the portion
which is in forming part of proposed TP road.
7. From the record, it appears that That notices as
contemplated under Section 68 of the Gujarat Town Planning and
Urban Development Act, 1976 read with Rule 33 of the Gujarat
Town Planning and Urban Development Rules, 1979 were issued to
the petitioner and after and after affording opportunity of being
heard, detailed orders are passed by the answering corporation.
8. In view of the aforesaid reasonings, it is apparent that
the respondent-Corporation is acting under the provisions of the
Town Planning Act, wherein status of the Town Planning Scheme
has been indicated in the preceding paragraphs and therefore,
C/SCA/1247/2022 ORDER DATED: 04/03/2022
execution of the town planning road is required to be undertaken
as per the sanctioned Town Planning Scheme. The map produced
at Annexure-R1 and R2 of this Town Planning Scheme No.128
(Vatva-Aslali) clearly indicates importance of the town planning
road and existence of construction on the road which is occupied
by the petitioners.
8.1 The Court has also taken into consideration the
observations made by this Court in the decision of this Court in
case of Ashokkumar Ramanlal Shah & Ors. Vs. State of
Gujarat & Ors., in SCA No.15298 of 2017 and allied matters
dated 18.07.2018. In the said decision, the Court has held in
para-11 as under:-
"11. In view of the above, there remains no shadow of
doubt that where the draft scheme has been sanctioned
by the Government, the lands required for the purposes
specified in the clauses (c), (f), (g) or (h) of Section
40(3) would automatically vest in the appropriate
authority as per Section 48(A) and that the person, who
is not entitled to occupy the land under the sanctioned
draft scheme can be summarily evicted under section
48A(3) of the said Act, on the analogy of the provisions
contained in section 68 of the Act read with Rule 33 of
the Rules. When the Statutory vesting takes place as
contemplated in Section 48A(1) of the said Act, the
petitioners could not insist that they should be
simultaneously handed over possession of the final
plots proposed to be allotted to them under the Draft
Scheme, before they are evicted from the subject lands.
C/SCA/1247/2022 ORDER DATED: 04/03/2022
The purposes mentioned in Clauses (c), (f), (g) and (h)
of Section 40(3) are the public utility services, and
therefore the statutory vesting under Section 48A(1) of
the lands earmarked for such purposes is automatic. It
is axiomatic that salus populi suprema lex that regard
be had to be public welfare, is the highest law. The
respondent authorities have sought to exercise their
powers under section 48A(3) read with section 68 and
Rule 33 after following due process of law and after
giving reasonable opportunity of hearing to the all
concerned including the petitioners. Hence, it could
not be said that the respondent no.2-Corporation has
acted arbitrarily or without any authority of law while
issuing impugned notices and passing the impugned
orders."
8.2 The Division Bench of this Court in decision case of
Iqbal Ibrahim Qureshi & Ors. Vs. State of Gujarat & Anr., in
LPA No.401 of 2018 dated 09.04.2018 has held in para-13 as
under:-
"13. From the aforesaid provisions contained in the
Act, it is clear that once the state government has
sanctioned the draft scheme in September, 2012, all
lands required by the respondent Corporation for the
purposes specified in clauses (c),(f),(g),(h) of Section
40(3) of the Act shall vest absolutely in appropriate
authority free from all encumbrances and provisions of
Sections 68 and 69 shall mutatis mutandis apply to the
sanctioned draft scheme as if the sanctioned draft
scheme were a preliminary scheme. Further, powers
are given under Section 68 to the appropriate authority
C/SCA/1247/2022 ORDER DATED: 04/03/2022
that on and after the date on which a preliminary
scheme comes into force, any person continuing to
occupy any land which he is not entitled to occupy
under the preliminary scheme shall be summarily
evicted in accordance with the prescribed procedure.
The appropriate authority is also empowered after
giving notice in accordance with the provisions of the
scheme to remove, pull down, or alter any building or
other work in the area included in the scheme."
9. With regard to contention raised by learned Advocate
for the petitioner with regard to revision of the plan, it would be
appropriate to refer to chronology mentioned in the preceding
paragraphs of the judgment regarding chronology of the TP scheme
and ultimately, draft TP Scheme came to be sanctioned by the
State Government under Section 48(2) of the Town Planning Act on
23.12.2010. The decision referred to by learned Advocate for the
petitioner pertains to invoking of Section 20(2) of the Town
Planning Act seeking declaration of lapse of the draft development
plan. The stage at which scheme in the present case has
progressed, the decision cited by learned Advocate for the may not
have any application considering the fact that the issue was
examined at the stage of draft development plan and that it was
examined keeping in view the designation /reservation of plot
under the scheme which was ordered to be de-reserved by
declaring designation /reservation to have lapsed with efflux of
time in view of Section 20(2).
C/SCA/1247/2022 ORDER DATED: 04/03/2022
10. In view of the aforesaid, the Court is not inclined to
entertain these petitions. However, as submitted by learned
Advocate for the respondent-Corporation, it is observed that
considering the fact that the petitioners are to lose their dwelling
units, it would be open for the petitioners to approach the
respondent-Corporation for the benefits of alternative
accommodation and /or compensation as per the prevailing policy
of the respondent-Corporation. If the petitioners make such
application, the same shall be considered by taking into
consideration the requirements which the petitioners will have to
fulfill as per the scheme for providing alternative accommodation
/compensation.
11. With the aforesaid observations, the petitions stand
disposed of.
12. In view of the order passed in the main matters,
respective Civil Applications do not survive. Disposed of
accordingly.
(A.Y. KOGJE, J)
SHITOLE
