Jagdishbhai Heralal Mali vs State Of Gujarat
2022 Latest Caselaw 9129 Guj

    C/SCA/13159/2021                             JUDGMENT DATED: 14/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13159 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

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1    Whether Reporters of Local Papers may be allowed                 No
     to see the judgment ?

2    To be referred to the Reporter or not ?                          No

3    Whether their Lordships wish to see the fair copy                No
     of the judgment ?

4    Whether this case involves a substantial question                No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       JAGDISHBHAI HERALAL MALI
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR COUNSEL WITH MM BEG(8096) for the
Petitioner(s) No. 1
MR MEET THAKKAR, AGP for the Respondent(s) No. 1,2
MR MAULIK NANAVATI FOR NANAVATI & CO.(7105) for the Respondent(s)
No. 3
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 14/10/2022

                            ORAL JUDGMENT

Rule. Learned AGP waives service of rule on behalf of respondent State. Learned advocate Mr.Maulik Nanavati waives

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

service of rule on behalf of respondent no.3.

1. The present petition is filed under Article 226 of the Constitution of India for the following reliefs:-

"(A) YOUR LORDSHIP be pleased issue writ

of mandamus and certiorari or any appropriate writ

order in direction of implementation of town

planning scheme Akota-1 is defective as under

informality procedure.

OR IN ALTERNATIVE

YOUR LORDSHIP be pleased issue writ of

mandamus or any appropriate writ order in

direction of Respondent no.2 and 3 to consider

representation dated 29/02/2019 (Annexure D) with

expeditiously in accordance of law or in the interest

of justice.

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

(B) YOUR LORDSHIP be pleased grant any

alternative relief to the petition."

2. The brief facts of the petition are as under:-

2.1. It is contended that the petitioner's predecessor was having ownership of agricultural land situated at village Akota and having land bearing survey nos.263, 281, 282, 283. It is stated that the entry regarding the sale transaction of the year 1957 came to be recorded as 302 and 303 on the revenue record. It is contended that the Town Planning Scheme Akota-1 was commenced and it covered petitioner's land and initially original plot no.76 was allotted to the petitioner with original land admeasuring 9697 square meters and therafter it was reconstituted plot nos.246 and 270, admeasuring 4320 square meters. It is contended that necessary form F was also prepared at that time.

2.2. According to the petitioner, Town Planning Scheme of Akota-1 was finalized and revised development plan was confirmed by modification plan dated 18.01.2012. It is contended that the petitioner is concerned only with a fact that

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

an error and irregularity has occurred while sanctioning the scheme and regarding final plot no.246 and 270 the petitioner came to be missed from the same and it was not shown with there limit. It is contended that the petitioner made representation regarding these facts vide its communication dated 29.02.2019. His grievance has not been redressed by the competent authority of the respondents. It is contended that due to mistake occurred on the part of sanctioning authorities regarding Town Planning Scheme Akota-1, the petitioner has been deprived of his right of occupancy and utilization of final plot. On this ground the petitioner has filed the present petition.

3. The affidavit in reply on behalf of respondent no.3 has been filed wherein it has accepted the implementation of the Town Planning Scheme and the averment of the petitioner regarding sanctioning of the requisite final plot. However, it is contended that it is for the Town Planning Officer to clarify if the area of about 2 acres and 15 gunthas of the petitioners have been inadvertently ommitted from being treated as separate plot of land or has erroneously being clubbed with developed individual plot as per the approved lay out plan. It is contended that in case of former the person concerned will be entitled to a separate plot of land whereas in case of later, the clubbing is erroneous than it will have to be appropriately remitted by recognizing the area of

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

land as a distinct parcel of land belonging to the concerned person. It is contended that on receipt of the clarification from the Town Planning Officer appropriate action may be taken. It has prayed to dismiss the petition.

4. The petitioner has filed rejoinder reiterating the contention raised by it and has submitted that the authority has accepted the factum of Town Planning Scheme and the entitlement of the petitioner and therefore the petition may be allowed.

5. Heard learned senior counsel Mr.Shalin Mehta for the petitioner, learned AGP Mr.Meet Thakkar for respondent nos.1 and 2 and Mr.Maulik Nanavati, learned advocate for Nanavati & Co. for respondent no.3 at length. Perused the material placed on record.

6. Learned senior counsel Mr.Shalin Mehta has reiterated the facts narrated in the petition and has submitted that there is mistake committed by the competent authority in preparing the Town Planning Scheme and the authority itself has accepted that if there is mistake occurred than it will be remedied. He has submitted that there is clear cut mistake occurred on the part of the authority and therefore authority may be directed to rectify its error. He has submitted that either of the authority should

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

take appropriate action for redressal of the petitioner. He has prayed to allow the present petition.

7. Learned AGP Mr.Meet Thakkar has submitted that as per the affidavit in reply filed by the respondent no.3, appropriate action can be taken.

8. Learned advocate Mr.Nanavati for respondent no.3 has submitted that it was an old scheme and no record is available with the Municipal Corporation and therefore it is not possible for the corporation to decide the point in question. He has stated that only Town Planning Officer could verify it and the Government can resolve the same. He has prayed to dismiss the petition.

9. Having considered the submissions made on behalf of both the sides, coupled with the material placed on record, it is clearly found that the State Government has not filed any affidavit in reply of the petition. It also reveals from the affidavit in reply on behalf of respondent no.3 that in para no.7, 8, 9, 10 and 11 it is averred as under:-

"7. It appears to be the say of petitioner that that the

Town Planning Officer has proceeded on the basis

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

that the total holding of land by Muljibhai

Amthabhai Mali, Somabhai Amthabhai Mali and

Amthabhai Garbadbhai Mali comprised of the 64

plots spread over an area of about 8 acres and 7

guntas and the garden and roads, as contained in the

approved layout plan, covering an area of 6 guntas

and 2 acres and 15 guntas respectively. Town

Planning Officer, as mentioned hereinabove, has

given final plot to the individual plots and has

included in the scheme the area of garden and roads

demarcated in the approved layout plan.

8. It further appears to be the say of petitioner that

the Town Planning Officer has not considered the

additional area of 2 acres and 15 guntas (2-15-113)

as distinct holding of Muljibhai Amthabhai Mali,

Somabhai Amthabhai Mali and Amthabhai

Garbadbhai Mali, and does not appear to have given

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

a separate final plot for such area of land which

remained outside the layout plan approved for

development of an area of about 10 acres and 28

guntas.

9. It is the submission of petitioner, on the basis of

reading and interpretation of the documents

produced on record, that the Town Planning Officer

has treated the additional area of 2 acres and 15

guntas which was not included for development

under the approved layout plan as part of the entire

area of layout plan, and proceeded on a belief that

this area of about 2 acres and 15 guntas is part of

the plotted land. Reliance is placed by the petitioner

on Form F, produced by the petitioner on record of

the petition, which mentions that the entire area of

land belonging to Muljibhai Amthabhai Mall,

Somabhai Amthabhai Mall and Amthabhai

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

Garbadbhai Mali, be it part of the plotting scheme

or otherwise retained by them independently of the

plotting scheme, is given Final Plot No. 246 and 270

and rights therein are transferred to the owners of

the individual plots under the scheme.

10. The town planning scheme was prepared and

finalized by the Town Planning Officer, and

therefore it is for the Town Planning Officer to

clarify if the area of about 2 acres and 15 guntas

which was not forming part of any development

under the approved layout plan and which continued

to remain independently with Muljibhai Amthabhai

Mali, Somabhai Amthabhai Mali and Amthabhai

Garbadbhai Mali has been inadvertently omitted

from being treated as a separate plot of land or has

erroneously been clubbed with the developed

individual plot as per the approved layout plan. In

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

case of former, Muljibhai Amthabhai Mall,

Somabhai Amthabhai Mali and Amthabhai

Garbadbhai Mali shall become entitled to a separate

plot of land. In case of later, the clubbing is

erroneous, both in fact and in law, and will have to

be appropriately remedied by recognizing the area

of land as a distinct parcel of land belonging to

Muljibhai Amthabhai Mali, Somabhai Amthabhai

Mali and Amthabhai Garbadbhai Mali.

11. I submit that immediately on receipt of

clarification from the Town Planning Officer

appropriate action shall be taken by the

Corporation. If it is found that an error has been

committed, howsoever inadvertently, by the Town

Planning Officer in computing the total holding of

Muljibhai Amthabhal Mali, Somabhai Amthabhai

Mali and Amthabhai Garbadbhai Mali while

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

awarding final plot under the town planning scheme

then the Corporation assures that it shall take

suitable action as is permissible in law. On the other

hand, if it is found that no error, much less a legal

error, has been committed by the Town Planning

Officer then the representation shall be suitably

answered by the Corporation."

10. Thus, averments made by the respondent no.3 clearly suggests that the contention of the petitioners regarding his total holding of the land is not disputed. It also appears that some mistake has been occurred at the end of the concerned Town Planning Officer or the concerned Authority who has prepared and sanctioned the plan. Even if it is a mistake of any of the authority, ultimately it is for the Government to look into the matter and to remedy the situation and to rectify the error committed by the concerned Town Planning Officer and to provide redressal in respect of the grievances of the petitioner. Now considering the averment made in the affidavit in reply of the respondent no.3, at this juncture, it cannot be held that the Town Planning Scheme Akota- 1 is a defective one. However, at

C/SCA/13159/2021 JUDGMENT DATED: 14/10/2022

the same time certain directions needs to be issued to the respondent nos. 2 and 3 to consider the representation of the petitioner within time bound period.

11. In view of the above, the respondent nos.2 and 3 are hereby directed to consider the representation dated 29.02.2019 (Annexure D) expeditiously, in accordance with law as early as possible within a period of six weeks from the date of receipt of this order. With this direction, the present petition stands allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) URIL RANA