Jayantilal Mangaji Thakor vs State Of Gujarat
2023 Latest Caselaw 2771 Guj

     C/WPPIL/27/2020                               JUDGMENT DATED: 05/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/WRIT PETITION (PIL) NO. 27 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
A.J.DESAI

and

HONOURABLE MR. JUSTICE BIREN VAISHNAV

==================================================

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

2     To be referred to the Reporter or not ?                           NO

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

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

==================================================
                       JAYANTILAL MANGAJI THAKOR
                                 Versus
                            STATE OF GUJARAT
==================================================
Appearance:
MR NV GANDHI(1693) for the Applicant(s) No. 1,10,11,2,3,4,5,6,7,8,9
MS SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER for the
Opponent(s) No. 1,2,4
MR PRASHANT DESAI, SENIOR ADVOCATE WITH
MR NIKUNT K RAVAL(5558) for the Opponent(s) No. 3,5
MR SALIL M THAKORE(5821) for the Opponent(s) No. 6
==================================================

    CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
          JUSTICE A.J.DESAI
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV


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      C/WPPIL/27/2020                         JUDGMENT DATED: 05/04/2023




                         Date : 05/04/2023
                         ORAL JUDGMENT

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)

1. By way of present petition under Articles 226 and 227 of

the Constitution of India in the nature of public interest, the

petitioners, who belong to a particular community and residents

of Sabarmati area of city of Ahmedabad, have prayed to issue

writ of mandamus directing the respondent authorities, i.e.

State of Gujarat and Ahmedabad Municipal Corporation to vary

the scheme, i.e. Town Planning Scheme No.23 (Sabarmati) qua

Final Plot Nos.612 and 613, by which Final Plot No.612 at the

location of Survey No.5/B of Sabarmati as provided under

Section 70 of the Town Planning Act since the town planning

scheme which has been approved by the respondent authorities

includes the land of the graveyard used by the petitioners

community for burying their children below the age of 10 years.

2. In response to the notice issued by this Court, the

respondent corporation has filed an affidavit-in-reply dated

3.1.2023 and opposed grant of relief as prayed for by the

C/WPPIL/27/2020 JUDGMENT DATED: 05/04/2023

petitioners.

3. The case put forward by the petitioners is as under:

3.1 The land bearing Revenue Survey No.5/B, admeasuring

4047 square meters which is situated in the sim of

Mouje/Village: Acher, Taluka & District: Ahmedabad, was

allotted for the purpose of graveyard, i.e. to bury the dead body

of members of Thakor community and particularly for the

children who are below the age of 10 years. Mutation Entry

No.990 was mutated to the said effect on 10.6.1936.

3.2 It is the case of the petitioners that another parcel of land

being Survey No.5/A paiki was also allotted for the purpose

funeral of village people and accordingly, Mutation Entry

No.2314 was posted on 24.5.1950 in the revenue records.

3.3 It is the case of the petitioners that the Panchayats and

Health Department, State of Gujarat issued a notification on

29.11.1965 in exercise of its powers conferred by sub-section

(2) of Section 28 of the Bombay Town Planning Act, 1952

(Bombay Act No.XIVII of 1955) sanctioned a Draft Town

C/WPPIL/27/2020 JUDGMENT DATED: 05/04/2023

Planning Scheme, Ahmedabad No.23 (Sabarmati) submitted to

it by the Ahmedabad Municipal Corporation for the purpose of

plan development of the said area covering Survey No.19/2/B

paiki, wherein residential houses of the petitioners are situated.

3.4 In exercise of powers conferred by Section 31 of the Town

Planning Act, 1954, Government of Gujarat appointed the Town

Planning Officer for the said draft scheme.

3.5 As per Section 65 of the Gujarat Town Planning and Urban

Development Act, 1976 sanctioned the Town Planning Scheme,

Ahmedabad No.23 (Sabarmati) Preliminary. As provided under

Section 52 as well as sub-section (2) of Section 62 of the Act,

the Town Planning Officer who was appointed under provisions

of the Town Planning Act submitted his report to the State of

Gujarat.

3.6 As per Section 65 of the Town Planning Act, the scheme

was finalised on 22.11.1983 and implemented with effect from

9.1.1984.

3.7 It is the case of the petitioners that as per the town

C/WPPIL/27/2020 JUDGMENT DATED: 05/04/2023

planning scheme, the respondent authorities allotted Final Plot

No.612 for the purpose of graveyard which admeasures 4818

square meters that by changing the location of graveyard.

Therefore, the grievance of the petitioners that the piece of land

which is now allotted in the new scheme, is outside the original

plot No.5/B which ought not to have done by the authorities.

The main grievance of the petitioners is that there are already

graves on the original plot and as per town planning scheme

No.23, a road would be constructed and, therefore, the

graveyard would be destroyed and in such circumstances, the

authorities may be directed to vary the scheme. He would

submit that the government authorities have power to vary the

scheme under Section 70 and considering the sentiments of the

community belonging to the petitioners, the respondents be

directed to vary the scheme.

3.8 Mr. Gandhi, learned advocate for the petitioners would

submit that though the scheme has been sanctioned way back in

the year 1983, the respondent authorities have not implemented

the scheme and, therefore also the respondents be directed to

vary the scheme.

C/WPPIL/27/2020 JUDGMENT DATED: 05/04/2023

4. On the other hand, Mr. Prashant Desai, learned Senior

Advocate assisted with Mr. Nikunt Raval, learned advocate for

the respondent Ahmedabad Municipal Corporation has taken us

through the affidavit-in-reply filed by the corporation as well as

several documents produced along with the affidavit. He would

submit that the town planning scheme has been sanctioned way

back in the year 1983. When the objections were invited at the

time of issuance of notification of the town planning scheme

No.23, neither the petitioners nor any person from the

community have raised any objection and ultimately, keeping in

mind the requirement of graveyard for burying children of the

petitioners' community, another plot which is in the nearby area

admeasuring 4818 square meters of land has been allotted

which is much larger than as the land which is sought to be

needed for laying down the road. He would submit that some of

the owners of adjacent land in question had filed writ petition

being Special Civil Application No.7201 of 2010 and for

implementation of the scheme and by oral judgment dated

24.2.2011, the petitions were accepted and the authorities were

directed to implement the scheme.

C/WPPIL/27/2020 JUDGMENT DATED: 05/04/2023

4.1 Mr. Desai, learned Senior Advocate would submit that the

scheme has been finalised way back in the year 1983 and as per

the provisions, the same has become part of the Act. He would

submit that this is not challenged by the present petitioners.

4.2 By taking us through the relevant map which is produced

along with the affidavit-in-reply, Mr. Desai, learned Senior

Advocate would submit that the corporation intends to lay down

the road which is connecting a cricket stadium to the main area

of city of Ahmedabad and, therefore, variation of scheme is not

possible. He would submit that burial ground which has been

now allotted to the petitioners, is also on 12.90 meter town

planning road and which is a meagre size and the road as per

the town planning scheme is passing through the middle part of

the land which was allotted for graveyard and, therefore, it is

not feasible to vary the scheme. He would submit that more

area has been granted against the actual area of the land which

is being taken away. He would submit the petition be dismissed.

5. We have heard learned advocates for the respective

parties.

C/WPPIL/27/2020 JUDGMENT DATED: 05/04/2023

6. It is an undisputed fact that after following process of law,

the scheme had been finalised way back in the year 1983. It is

also an undisputed fact that when the procedure enumerated

under the said Act and the Rules were undertaken by the

authorities, no objections or grievances were raised by any of

the persons. It is also an undisputed fact that the area of

graveyard which is going to be used for road is 1726 square

meters, whereas, out of 4046 square meters, remaining part

would be granted to electricity company, whereas possession of

473 square meters is to be handed over to the petitioners of

Special Civil Application No.7201 of 2010 as per the judgment

passed by this Court on 24.2.2011. Against total area of 4046

square meters, under the town planning scheme, the area

earmarked for graveyard is 4818 square meters which is much

larger than as the land which is sought to be used for laying

down the road. It is an undisputed fact that the scheme has

been sanctioned and has become part of the Act.

7. We have also gone through the map produced by the

corporation. While laying down the straight road, the land which

C/WPPIL/27/2020 JUDGMENT DATED: 05/04/2023

was used by the petitioners for graveyard, the road is passing

through the same and against which the area which is given on

another land and, therefore, the same can be used by burying

the children below the age of 10 years. We do have sympathy

for the sentiments of the community of the petitioners.

However, the scheme which is for the interest of public at large

and for laying down the road and particularly when more area

has been granted for the purpose of graveyard, we are of the

opinion that similar type of land of a larger area for a graveyard

is allotted, the petitioners can also use the land for the

graveyard as they desire on the land at Survey No.612 which is

earmarked for graveyard. Hence, we do not find any substance

in the writ petition and is hereby dismissed. Notice discharged.

(A.J.DESAI, ACJ)

(BIREN VAISHNAV, J) Bharat