Gujarat High Court

Kantibhai S/O Baljibhai vs Gujarat Urban Development And ... on 7 September, 2022

Bench: Sandeep N. Bhatt

     C/SCA/6712/2022                                       ORDER DATED: 07/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6712 of 2022

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                    KANTIBHAI S/O BALJIBHAI
                            Versus
        GUJARAT URBAN DEVELOPMENT AND URBAN HOUSING
                  DEVELOPMENT DEPARTMENT
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Appearance:
for the Petitioner(s) No. 2,3,4,5,6,7
PARAS K SUKHWANI(8284) for the Petitioner(s) No. 1
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 2
MS. JYOTI BHATT, AGP for the Respondent(s) No.1
NOTICE SERVED BY DS for the Respondent(s) No. 1,3,4,5
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 07/09/2022
                                   ORAL ORDER

1. The present petition is filed for following prayers:

"A) It is therefore most humbly prayed that your lordships may be leased to allow this writ petition and may further be pleased to direct the Respondents by way of appropriate Writ, order or direction to release the Disputed Land which has been illegal taken from the Petitioners under the Grab of the Gujarat Town Planning and Urban Development Act, 1976.

B) In the alternate, may be pleased to direct the Respondents by way of appropriate Writ, order or direction to pay compensation to the Petitioners

C/SCA/6712/2022 ORDER DATED: 07/09/2022

according to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

C) Any other order/direction be passed in the favour of the Petitioners as the Hon'ble Court deems just and proper."

2. Heard learned advocate Mr. Kaushal D. Pandya for

the respondent No.2 - corporation and learned AGP Ms.

Jyoti Bhatt for respondent No.1

3. Learned advocate Mr. Paras K. Sukhwani for

petitioner No.1 has submitted that the present petition is

preferred being aggrieved and dissatisfied for not receiving any compensation for the land deducted by the

Preliminary Town Planning Scheme, Umara North.

Further, he has submitted that the name of the

petitioner is still being shown in the revenue record as

owner of the disputed land. Further, he has submitted

that the petitioners were not given opportunity of being

heard by the respondent authorities, which is in violation

of the principles of natural justice. Further, he has

submitted that the respondents have not taken any

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action within a period of six months even after service

of notice under Section 20(2) of the Gujarat Town

Planning & Urban Development Act, 1976 and the time

is elapsed. Further, he has submitted that respondents

have not acquired the disputed land even after expiry of

ten years after publication of Town Planning Scheme.

3.1 Per Contra, learned advocate Mr. Pandya has

submitted that such prayer, made in the present petition,

is misconceived as per the Gujarat Town Planning &

Urban Development Act, 1976. He has further submitted

that Section 20 of the Gujarat Town Planning & Urban

Development Act, 1976 is applicable in the case where

there is question of reservation in development planning and in the present case, there is no challenge effected

for allowing the final plot for implementation of scheme

as per the policy and provisions of the Act. Further, he

has pointed out that there is remedy available under

Section 54 of the Gujarat Town Planning & Urban

Development Act, 1976 by way of appeal to the present

petitioners. He has relied upon the judgment of this

Court in the case of Uakubbhai Valibhai Patel Vs. State

of Gujarat & Ors. rendered in Special Civil Application

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No.15788 of 2008 dated 15.06.2010 and more particular

paras 5, 7 and 8, which read as follows:-

"5. Petition is opposed by Shri Pranav Desai, learned advocate appearing on behalf of the respondent Nos. 2 and 3, learned advocate Shri H.S.Munshaw, appearing on behalf of respondent No.4 and learned AGP, Shri M.R.Mengdey, appearing on behalf of respondent No.1-

State. Learned advocates appearing on behalf of the respective respondents have submitted that present petition deserves to be dismissed on the ground of delay, laches and acquiescences. It is submitted that the land bearing Final Plot No.129 out of the land bearing Original Survey No.212/1 is carved out and reserved for the purpose of "School" under the Final Town Planning Scheme which came to be sanctioned on 5.9.1995 and petitioners are challenging the said reservation and the Final Town Planning Scheme after a period of 15 years which is not required to be entertained. It is further submitted that as such, Section 20 of the Gujarat Town Planning Act would not be applicable as contended on behalf of the petitioners as Final Plot No.129 is put under reservation under the final Town Planning Scheme and not under the Development Plan. It is submitted that Section 20 of the Town Planning Act would be applicable only in a case where land is put under

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reservation under Development Plan. It is submitted that under the scheme of the Gujarat Town Planning Act certain land is compulsorily deductable from the original holding of the land owner which is required by the appropriate Authority for the implementation of the Town Planning Scheme, for various purposes under the Town Planning Scheme inclusive of road, drainage, school Shopping Center, etc. and the land owner is entitled to get the compensation under the Gujarat Town Planing Act only and not the market price as contended on behalf of the petitioners. It is submitted that deduction of land by the appropriate Authority under the Town Planning Scheme for various purpose is permissible under the provisions of the Gujarat Town Planning Act and therefore, no fundamental right of the petitioner have been infringed and violated as alleged. Therefore, it is requested to dismiss the present petition.

7. At the outset, it is required to be noted that land bearing Final Plot No.129, ad-measuring 3989 Sq.Mtrs. originally belonging to the petitioners has been reserved for the purpose of "School" for the appropriate Authority under the Final Town Planning Scheme which is sanctioned and became final in the year 1995. Petitioners are challenging the said Final Town Planning Scheme which has become final in the year

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1995 after a period of 13 years. Under the circumstances, on the ground of delay, laches and acquiescences, present petition challenging the town Planning Scheme No.15, Vadodara in so far as putting Final Plot No.129, under reservation of "School" deserves to be dismissed on the ground of delay, laches and acquiescences.

8. Even on merits also petitioners have no case. It is the contention on behalf of the petitioners that as the land in question which is reserved for the purpose of "School" in the year 1995 is not used for the School despite 13 years have been passed and therefore, the said reservation is lapsed and/or is required to be quashed and set aside under Section 20 of the Town Planning Act. It appears that there is some misconception on the part of the petitioners relying upon Section 20 of the Town Planning Act. Section 20 of the Town Planning Act would not be applicable in a case where the land is put under the reservation under the final Town Planning Scheme. Section 20 of the Town Planning Act would be applicable only in a case where land is reserved under the final Development Plan for any specific purpose. Section 20 of the Act would not be applicable with respect to the land put under reservation for a specific purpose under the Final Town Planning Scheme. In the present case,

C/SCA/6712/2022 ORDER DATED: 07/09/2022

as the land bearing Final Plot No.129 is put under reservation under the Final Town Planning Scheme, Section 20 would not be applicable and therefore, the contention on behalf of the petitioners that as the land bearing Final Plot No.129 is not used for the purpose for which, the same is reserved under the Town Planning Scheme and therefore, the land is to be de-

reserved cannot be accepted."

3.2 Learned AGP Ms. Bhatt has submitted that there is

substantial delay in preferring the present petition and

the scheme is finalized on 07.07.2008 and the present

petition is filed at the belated stage.

4. Considering the submissions of respective parties, I am of the opinion that the present petitioner is having

alternative remedy and the present petition is filed at a

belated stage and looking to the averments made in the

petition and more particularly, prayer, it clearly

establishes that the present petition is misconceived as

the present petition is not falling under Section 20 of

the Town Gujarat Town Planning & Urban Development