Gujarat High Court
Hasmukhbhai Gopalbhai Patel vs The State Of Gujarat on 14 March, 2023
Bench: Nirzar S. Desai
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2964 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 23828 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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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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HASMUKHBHAI GOPALBHAI PATEL
Versus
THE STATE OF GUJARAT
==========================================================
Appearance:
Special Civil Application No.2964 of 2023
MR. R.S.SANJANWALA, SR ADVOCATE with
MR. DIGANT M POPAT(5385) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Resopndent(s) No.4,5,6
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2,3
NOTICE SERVED BY DS for the Respondent(s) No.1
MS DHARITRI PANCHOLI, AGP for Respondent State Authorities
Special Civil Application No.23828 of 2022
MR.HRIDAY BUCH ADVOCATE with
MRB.P.PATEL ADVOCATE and
MR.KUMAR TRIVEDI for the Petitioner
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2,5
MR DIGANT POPAT for the Respondent(s) No. 6,7
MS DHARITRI PANCHOLI, AGP for Respondent State Authorities
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 14/03/2023
Page 1 of 30
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C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
ORAL JUDGMENT
ORDER IN SPECIAL CIVIL APPLICATION NO.23828 OF 2022:
1. The matter was heard extensively on 07.03.2023
and it was agreed and understood between the parties
that matter was being argued finally. Hence, Rule.
Learned advocate Mr.Digant Popat waives of service of
notice of Rule on behalf of newly added respondent
Nos.6 and 7, learned Assistant Government Pleader
Ms.Dharitri Pancholi waives service of notice of Rule
on behalf of Respondents State No.1 and 3 and learned
advocate Mr.Dhaval Nanavati waives service of notice
of Rule on behalf of Respondent No.2 - Surat
Municipal Corporation as well as Respondent Nos.4 and
5.
2. Pursuant to the order dated 06.03.2023, on
06.03.2023 learned advocates for the respective parties
had come to the chamber of author of this judgment at
5:00 p.m. and had examined the original records. The
Court also had orally directed learned Assistant
Government Pleader to produce necessary documents
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
for clarity of facts in respect of whether the proposal
for carving out Final Plot Nos.9 and 10 was already
there at the time of recommanding the Preliminary
Town Planning Scheme to the State Government /
Chief Town Planning Officer of the Town Planning
Department for sanctioning it or it was subsequently
decided after recommendation in respect of preliminary
Town Planning Scheme No.39 (Udhna- Limbayat) was
made by Surat Municipal Corporation. Accordingly,
learned Assistant Government Pleader Ms.Dharitri
Pancholi had produced relevant documents after
serving the copies of those documents upon learned
advocates appearing for respective parties and
thereafter the matter was heard finally.
3. Heard learned advocate Mr.Hriday Buch for
learned advocate Mr.Kumar H. Trivedi for the
petitioner, learned Assistant Government Pleader
Ms.Dharitri Pancholi for Respondent Nos.1 and 3 -
State, learned advocate Mr.Maulik Nanvati with
learned advocate Mr.Dhaval Nanavati for Respondent
Nos.2, 4 and 5 and learned senior advocate
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
Mr.R.S.Sanjanwala with learned advocate Mr.Digant
Popat for Respondent Nos.6 and 7.
4. Brief facts giving rise to the filing of the present
petition are stated as under:
4.1 It is the case of the petitioner that the petitioner
is the original owner of the land bearing Block No.9 at
Limbayat, Tal:Udhna, District: Surat and the land was
originally an agricultural land of old tenure and
subsequently was converted into non-agricultural land.
Once the NA permission was granted, the land was
plotted into 360 residential units out of which some of
the plots have already been allotted by the petitioner
to various third parties.
4.2 Surat Municipal Corporation vide Resolution dated
08.02.1999 declared its intention to make Town
Planning Scheme No.39 ( Udhna - Limbayat ) and
after the aforesaid intention was published in official
government gazette and local news-papers, the draft
Town Planning Scheme No.39 was also published in
local news-paper on 28.01.2000 and objections in
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
respect of said Town Planning Scheme were invited.
The draft Town Planning scheme was sanctioned vide
Notification dated 27.07.2000.
4.3 As per the draft Town Planning Scheme No.39,
the petitioner was allotted Final Plot Nos.9A and 9B
against his Original Plot No.9. According to the
petitioner, the State Government exercised its powers
under Section 50(1) of the Gujarat Town Planning and
Urban Development Act, 1976 ('TP Act', for short) and
appointed Town Planning Officer for finalisation of
Town Planning Scheme but at that stage individual
notices were not given to the petitioners and the Town
Planning Officer gave its decision on the Preliminary
Town Planning Scheme No.39 and submitted the same
to the State Government for sanction and accordingly
vide Notification dated 19.09.2019 the Preliminary
Town Planning Scheme was sanctioned as per Section
65 of the 'TP Act'.
4.4 Once the Town Planning Scheme was sanctioned,
the petitioner was allotted Final Plot Nos.11 and 12.
Hence, the petitioner made representation dated
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
31.12.2019 that some third party is allotted Plot Nos.9
and 10 which is just with a view to favour them.
Thereafter the petitioner received a notice on
24.10.2020 under Section 67 of the TP Act against
which the petitioner preferred Special Civil Application
No.15017 of 2020 which was disposed of by the
coordinate Bench of this Court vide order dated
27.09.2022 whereby it was submitted on behalf of
Surat Municipal Corporation that the notice dated
24.10.2020 was published in the newspaper and the
petitioner can be heard as and when Corporation issues
notice under Section 68 of the 'TP Act' read with the
Rule 33 of the Gujarat Town Planning and Urban
Development Rules, 1979 ['TP Rules', for short].
4.5 In view of aforesaid submission on behalf of
respondent Corporation, the Court did not entertain the
petition considering the petition to be premature and
authority was directed to follow necessary procedure as
envisaged under Section 68 of the 'TP Act' read with
Rule 33 of the TP Rules by giving opportunity to the
present petitioner to represent his case. While issuing
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
aforesaid directions, the Court vacated the relief
granted in favour of the petitioner.
4.6 Thereafter the petitioner was given a notice
under Section 68 of the TP Act read with Rule 33 of
the Rules and ultimately vide order dated 03.11.2022,
the Corporation rejected the petitioner's contention that
the petitioner's objections have not been considered by
the Town Planning Officer and directed the petitioner
to handover the possession of Final Plot No.10 to
Respondent No.6 within a period of ten days failing
which the proceedings under Section 188 of the Indian
Penal Code, 1860 shall be initiated against the
petitioner.
4.7 The aforesaid order dated 03.11.2022 as well as
Notification dated 19.09.2019 are subject matter of
challenge before this Court by way of this petition.
5.1 The Court had issued Notice on 29.11.2022 and
the same was made returnable on 05.01.2023. Just a
day before the returnable date i.e. on 04.01.2023 the
Corporation took over the possession of Final Plot
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
No.10 from the petitioner and handed it over to
Respondent No.6, who, in turn, handed over possession
of the same plot in favour of Respondent No.7 and
hence in view of aforesaid development petitioner
amended the petition. The amendment was granted
and the same was carried out and certain orders were
passed. Pursuant to those interim orders, both the
petitioner as well as Respondent Nos.6 and 7 entered
into an agreement on 01.03.2023 and learned counsels
for the petitioner and private respondents declared
about the same before this Court.
5.2 Pursuant to the aforesaid agreement between the
parties, the possession of Final Plot No.10 was restored
in favour of petitioner and thereafter the matter was
heard on 06.03.2023 and on 07.03.2023. The
agreement entered into between the parties was
reproduced earlier by this Court in its earlier order
dated 01.03.2023, however, for the convenience, the
same is once again reproduced as under:
ARRANGEMENT AGREED BETWEEN THE PARTIES
"1. It is agreed between the parties that the possession of the
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
final plot no.10 (subject land) will be handed over by Shri
Hasmukhbhai Gopalbhai Patel Respondent No. 6 and Shri
Bipinbhai Nathabhai Desai Respondent No. 7 to the
Petitioner Shri Dineshchandra Vakhariya in presence of the
officials of Surat Municipal Corporation and status quo as on
date will be maintained by both the parties. Further neither
party will enter upon the land or breach the status quo as
agreed. It is further agreed that the Surat
Municipal Corporation will ensure that status quo is
maintained by all the parties.
2. It is further agreed between the private Respondents that
pending the captioned petition no parties hereto shall alter
the status of the subject land and that the captioned Petition
will be heard at the earliest without seeking
any adjournments.
3. It is also agreed that subject to the outcome of the petition,
the possession of the subject land shall be immediately
handed over to the successful party."
K.H.Trivedi Digant M. Popat. Ahmedabad
Kumar H. Trivedi Adv. For Res. No. 6 and 7 01.03.2023
Advocate for petitioner"
5.3 Since the possession of Final Plot No.10 was
restored in favour of petitioner, this Court does not
deem it appropriate to narrate at length as to what
happened between 05.01.2023 and 06.03.2023 the date
on which the matter was heard finally as by way of
various interim orders, those facts are already on
record.
5.4 Initially, private Respondent Nos.6 and 7 were not
joined as party in this petition. However, subsequently
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
they were joined as Respondent Nos.6 and 7 and all
the respondents have filed their reply which are on
record.
5.5 The Surat Municipal Corporation filed its reply
dated 12.12.2022 whereby in that lengthy reply, if
summarized, it was stated that the Surat Municipal
Corporation as well as State Government have followed
the procedures prescribed under the 'TP Act' and Rules
framed thereunder that the petitioner had failed to
respond and submit its reply and / or response under
sub-rule (4) of Rule 26 of 'TP Rules' before the Town
Planning Officer and thereafter all the procedure
prescribed under sub-rule (4) to (8) of 'TP Rules' were
followed by Surat Municipal Corporation and Town
Planning Officer has published its intention / decision
in Form Nos. 'I' and 'J' as per sub-rule (9) of Rule 26
of the 'TP Rules' and Form No. J as prescribed under
Rule 9 of 'TP Rules' was published on 17.09.2015 and
accordingly Town Planning Officer had published
proposal for tentative Town Planning Scheme in local
news-papers calling all stake-holders to verify proposed
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
modification and to furnish details if the proposal is
not in accordance with their claim. At that stage, the
petitioners were failed to attain the notice and did not
raise any written objection to the Town Planning
Officer and, therefore, the Town Planning Officer had
declared its decision under sub-section (1) of Section
52 of 'TP Act' and thereafter the preliminary scheme
was announced and declared and the same was
published in Government gazettee as well as local
newspaper and thereafter the Town Planning Scheme
was sanctioned and the same was published in official
gazettee vide Notification dated 19.09.2019.
5.6 According to affidavit-in-reply, due process
prescribed under Law was followed by Surat Municipal
Corporation.
5.7 Surat Municipal Corporation has filed two more
replies as well, however, those replies are not touching
the matter on merits as those replies were in respect of
the action of Surat Municipal Corporation of handing
over possession of Final Plot No.10 to Respondent
Nos.6 and 7 during the pendency of this petition and
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
as the possession has subsequently been restored in
favour of petitioner, those replies, though are on
record, the Court is of the view that since those replies
do not touch the merits of the matter, contents of
those replies are not necessary to be reproduced when
the matter is being decided finally.
5.8 The State also has filed reply through Incharge
Town Planner (Legal) wherein relevant dates of the
Town Planning Scheme No.39 (Udhna - Limbayat)
were given in tabular form and it is stated in the
affidavit that due to change in the number of Final
Plot Nos.9A and 9B to Final Plot No.12 and 11, the
location of the land of the petitioner has not been
affected in any adverse way and the deduction in the
original plot at the stage of draft Town Planning
Scheme was proposed at 28.25% which was reduced
from 28.25% to 24.11% at the stage of sanction of
Preliminary Town Planning Scheme and actual at the
stage of sanctioning the Preliminary Town Planning
Scheme, the Final Plot allotted to the petitioner and
others has 2067 sq mtr more or so as compared to
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
draft Town Planning Scheme. Affidavit also states that
there is no procedural lapse in the framing of Town
Planning Scheme.
5.9 Along with the affidavit, Notification dated
19.10.2019 is also produced and in the schedule, in
Item No.2, by mentioning the petitioner's land along
with other lands through its case number the only
remark was that as and when redevelopment takes
place in the Final Plot, the further deduction as per
norms of deduction shall take place and accordingly
the deducted portion of the land would be required to
be given to the Area Development Authority.
5.10 Private Respondent Nos.6 and 7 also filed its
reply and in the reply they mainly contended that the
petitioner has challenged the Preliminary Scheme only
and though the impugned order dated 03.11.2022
categorically states that the scheme has received the
approval from the State Government despite that
Preliminary Scheme was challenged by the petitioner.
The private respondents have also contended in the
reply that the respondent - Surat Municipal
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
Corporation had issued notice from time to time but at
no point of time, objections were raised by the
petitioner. The private respondent also in its reply
stated that pursuant to the Notice under Section 68 of
TP Act read with Rule 33 of the TP Rules, the parties
were heard and thereafter order dated 03.11.2022 was
passed and, therefore, the petitioner could not have
made any grievance against the same. In nutshell, in
the reply filed by the private respondents, the
respondents have stated that the petitioners have not
raised appropriate objection at appropriate stage and
deduction of land from the Original Plot of the
petitioner is less than the deduction from the plot of
respondents and, therefore, considering the totality of
the facts and circumstances it was submitted that
petition be dismissed.
6. Heard learned advocate Mr.Hriday Buch with
learned advocate Mr.Kumar H. Trivedi for the
petitioner, learned senior advocate Mr.R.S.Sanjanwala
with learned advocate Mr.Digant Popat for private
respondent, learned Assistant Government Pleader
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
Ms.Dharitri Pancholi for the respondent State and
learned advocate Mr.Maulik Nanavati with learned
advocate Mr.Dhaval Nanavati for respondent - Surat
Municipal Corporation.
7. Learned advocate Mr.Hriday Buch with learned
advocate Mr.Kumar H. Trivedi made the following
submissions:
7.1 When the draft scheme was prepared and Final
Plot Nos.9A and 9B was allotted to the petitioner,
almost 30% of the land was deducted for laying down
36 mtr wide road and two different 9 mtr wide road
on the norther side and southern side of the Original
Plot and apart from that portion of the land was
reserved for 'public utility'. The petitioner did not
object to the said plans as the Final Plots allotted to
the petitioner were having proper location and access
at the junction of 36 mtr wide road as well as 9 mtr
wide road.
7.2 After the draft scheme was sanctioned, the
Government appointed Town Planning Officer as per
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
Section 50 of the TP Act and Town Planning Officer
reconstituted the plots and prepared preliminary
scheme for a period of 15 years i.e. from the year
2000-2015. During those 15 years, public notice and
individual notice were issued calling for objection from
the stockholders like the petitioners and during each of
the occasion the notices were issued showing the plans
as draft scheme. It is only in the year 2015 when the
Town Planning Officer sent the preliminary Scheme for
the sanction to the State Government, there was
substantive change with regard to original plot of the
petitioner and the 9 mtr wide TP road was shifted.
The plot reserved for public utility was cancelled and
instead of two different plots carved out on the
original plot of the petitioner which was allotted to
two different third party out of which Final Plot No.10
was allotted to Respondent No.6.
7.3 It was further submitted by learned advocate
Mr.Buch that after making those changes, when the
Town Planning Officer sent the preliminary scheme for
sanction to the State Government, the petitioner came
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
to know about the same only at the stage when the
notice was issued under Section 67 of the TP Act that
respondent No.6 has been allotted Final Plot No.10 on
the northern side of original plot of the petitioner
which abducts the junction of 36 mtr wide road as
well as 9 mtr wide road and, therefore, Special Civil
Application No.15017 of 2020 was preferred. The said
petition was disposed of as it was assured that the
petitioner will be heard after a notice under Section 68
of the TP Act read with Rule 33 of the TP Rules
would be issued. According to learned advocate
Mr.Buch the petitioner's representation pursuant to
notice under Section 68 of the TP Act read with Rule
33 of the TP Rules was rejected mainly on the ground
that petitioner failed to raise objection before the Town
Planning Officer when the preliminary scheme was
prepared and, therefore, the petitioner is disentitled to
raise any such objection once the scheme is finalised.
7.4 Learned advocate Mr.Buch contended that the
preparation of the scheme by the Town Planning
Officer is arbitrary and the Town Planning Officer has
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
changed the location of 9 mtr wide road on the
northern side of the original plot and removed the
reservation for public utility. Two Final Plots were
carved out and allotted to third party on the original
plot of the petitioner and hence this being substantial
change individual notice was required to be issued to
the petitioner.
7.5 It was further contended by the petitioner that
petitioner is allotted some additional land on some
other original plot and the vacant land on the original
plot of the petitioner is allotted to third party. The
petitioner ought to have been served with appropriate
individual notice that may be reflecting change calling
upon the petitioner to give his objection. Failure on
the part of the Town Planning Officer of issuing such
notice is contrary to law as well as judgment of this
Court in case of Kishanbhai Hargovandas Patel vs.
State of Gujarat reported in 2010 (4) GLR 2867.
7.6 Learned advocate Mr.Buch further contended
that Surat Municipal Corporation has committed error
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
and illegality in implementing the scheme as the
scheme was implemented qua allotment of Final Plot
No.10 to Respondent No.6 to sell the said parcel of
land on 31.12.2022 to Respondent No.7 and possession
was handed over on 04.01.2023 even before the
returnable date of the petition. Such piecemeal and
convenient implementation of the scheme is contrary
and, therefore, the same is contrary to the judgment in
the case of Amarsinh Shanaji Thakore vs. State of
Gujarat reported in 2004 (7) GHJ - 127.
7.7 By making aforesaid submissions, he prayed that
impugned Notification dated 19.09.2019 as well as the
impugned order dated 03.11.2022 may be quashed and
set aside.
8. Learned advocate Mr.Maulik Nanavati appearing
with learned advocate Mr.Dhaval Nanavati for Surat
Municipal Corporation refuted the aforesaid submissions
made by learned advocate Mr.Buch and submitted that
no illegality at any point of time has been committed
by Surat Municipal Corporation. He submitted that it is
not open for the petitioner to allege selective
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
implementation of scheme in view of the fact that now
the possession in respect of land in question has been
restored in favour of the petitioner and for that the
petitioner and private respondents have already filed
joint agreement on 01.03.2023. He further submitted
that the change in respect of carving out Final Plot
Nos.9 and 10 from Original Plot Nos.9A and 9B was
already there when the Preliminary Town Planning
Scheme along with recommendation was sent for
sanction to the State Government in the year 2015.
Despite the public notice the petitioner did not raise
any objection to the same and thereafter the State
Government sanctioned the preliminary scheme as per
the recommendation of the Surat Municipal
Corporation. Since recommendations were made in the
year 2015 itself and at the relevant point of time the
same was not objected despite public notice, it cannot
be said that the Corporation has not followed the
procedure prescribed under the Law. He submitted that
in view of the fact that necessary procedure prescribed
under the Act is followed and, therefore, the petition
is required to be dismissed as at the relevant point of
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
time the petitioner failed to raise any objection to the
proposed changes before sending the scheme to State
Government for sanction.
9.1 Learned Assistant Government Pleader Ms.Pancholi
also opposed the petition and submitted that once the
scheme was recommended by Surat Municipal
Corporation, the same was sanctioned as it is without
proposing any change as far as plots of the petitioner
is concerned and hence there was no need for the
State Government to issue any notice to the petitioner
or to hear him as the State Government did not
propose any change to the preliminary Town Planning
Scheme which was recommended for sanction.
9.2 From the record, learned Assistant Government
Pleader Ms.Pancholi pointed out that in the year 2015
itself, when Form No.J was published, even before
scheme was sent for sanction to the State Government,
Respondent No.6 was allotted Final Plot No.10.
Therefore, the allegation of the petitioner that just
with a view to favour Respondent No.6, Final Plot
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
Nos.9 and 10 were carved out later on is without any
basis. She also pointed out from the record that on
30.09.2015 itself in Form No.J as far as land of the
petitioner is concerned, it is categorically stated in
Form No.J that the petitioner is allotted Final Plot
Nos.11 and 12 and about the same the petitioner was
informed and not only the petitioner has examined
Form No.J but has also signed it on 19.10.2015 which
shows that the petitioner was well aware about the
proposed changes despite that the petitioner did not
raise objections till the preliminary scheme was
sanctioned and, therefore, as the necessary procedure
prescribed under the Act was followed, the petition is
required to be dismissed.
10.1 Learned senior advocate Mr.Sanjanwala
appearing with learned advocate Mr.Popat also
vehemently opposed the petition and submitted that
the only ground raised in the petition is that authority
has not followed the procedure and hence preliminary
scheme and Notification dated 19.09.2019 whereby
preliminary scheme was sanctioned is challeged which
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
is contrary to the record. In fact, record indicates that
entire procedure is followed by the authority. He
submitted that authority issued individual notices in
the year 2008 and 2010 and even the same was
communicated to the petitioner which can be seen
from Form No.J dated 30.09.2015 and the same was
received by the petitioner on 19.10.2015. The
petitioner sat idle even after receiving the aforesaid
notice and no objections were raised by the petitioner
at the relevant point of time and, therefore, petition is
required to be rejected.
10.2 Learned senior advocate Mr.Sanjanwala also
submitted that the petitioner has deliberately not
placed on record F-Form of sanctioning of preliminary
scheme which would indicate that the area of the land
allotted to the petitioner by sanctioning the preliminary
scheme is more than 38,000 sq mtr as against his
entitlement of 35,8000 sq mtr as per the sanctioned
draft scheme. The same has been done with mala fide
intention by the petitioner. He submitted that majority
of portion of the land allotted to the petitioner on his
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
own original plot and the Respondent No.6 is allotted
the land from the land which has been deducted by
the authority over which the petitioner can not claim
any right. He further submitted that petition is based
on incorrect and false statement as contention of the
petitioner was that petitioner was not put to any
notice before any such change or modification was
made before or after the preliminary scheme was
sanctioned. He submitted that when the preliminary
scheme was recommended for sanction, in the 'J' Form
, the petitioner was made aware about the fact that he
is allotted Final Plot Nos.11 and 12 and the petitioner
has received the aforesaid communication dated
19.10.2015. He submitted that in view of the fact that
all the procedure required under the Act are followed
and as the petitioner did not raise any objection at the
relevant point of time, the petition is required to be
dismissed as the order passed by the authority dated
03.11.2022 is well reasoned order and the same may
not be interfered with by this Court.
11.1 I have heard learned counsels for the parties,
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
perused the record of the case and considered the
decisions cited by learned advocate Mr.Buch for the
petitioner.
11.2 On perusal of the record, this Court finds that
even before the preliminary scheme was recommended
for sanction, necessary change whereby Final Plot
Nos.9 and 10 allotted to third party was there. The
petitioner was put to notice about the same and the
petitioner not only examined the Form 'J' dated
30.09.2015 but also countersigned to the same on
19.10.2015 which would indicate that the petitioner
was knowing about the fact that from his original plot
no.9, he has been allotted Final Plot Nos.11 and 12
and Final Plot Nos.09 and 10 has been carved out and
the same is allotted to some third party.
11.3 This Court has also observed the fact that Final
Plot Nos.9 and 10 were carved out simultaneously
while carving out Final Plot Nos.11 and 12 and,
therefore, in respect of all the four Final Plots before
recommending the scheme for sanction when Form 'J'
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
was published, the same was published on 30.09.2015.
Therefore, the petitioner had, even after the
Preliminary Scheme was sent for sanction, ample time
till the impugned Notification dated 19.09.2019 was
published. The petitioner could have raised objection
against the said proposed changes but the record
indicates that petitioner had never raised any such
objection against the same. On the contrary, in ground
[o] of the petition, the petitioner has stated that the
petitioner was not issued any notice or given any
opportunity of hearing between the year 2000 - 2019
which is factually incorrect. There was public notice
and petitioner could have replied and raised objection.
Petitioner was aware about the proposed change since
19.10.2015, despite the petitioner did not avail that
opportunity nor raise any objection.
11.4 Further, learned counsel for the petitioner
submitted that it is only at the stage when notice
under Section 67 of the Act was issued, the petitioner
came to know that some third party has been allotted
Final Plot on northern side of his original plot which
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
abducts junction of 36 mtr wide road as well as 9 mtr
wide road. This submission is also factually incorrect in
view of the fact that what this Court has found from
the examination of the record that when Form No.J
was published and when same was communicated to
the petitioner on 19.10.2015, since then the petitioner
was knowing that there is substantial change in respect
of allotment to the Final Plot and yet the petitioner
did not do anything by raising objections. It is only
after preliminary Town Planning scheme was
sanctioned vide Notification dated 19.10.2019 the
petitioner, for the first time, raised objections but by
then it was too late.
11.5 Considering the fact that petitioner was
knowing about the substantial change even before
preliminary scheme was recommended and sent for
sanction to the State Government as the petitioner did
not raise any objections, the judgment in the case of
Kishanbhai Hargovandas Patel vs. State of Gujarat
(supra) would not help the petitioner.
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
11.6 Further, as far as submission of learned
advocate Mr.Buch that implementation of the scheme
should be simultaneously done in view of the judgment
in the case of Amarsinh Shanaji Thakore vs. State of
Gujarat (supra) is concerned, this Court is of the view
that the question of implementing Town Planning
Scheme would come once the petitioner accept the
same. By way of this petition, when the petitioner has
challenged the order dated 03.11.2022 as well as
Notification dated 19.10.2019 in respect of Final Plot
Nos.11 and 12 in absence of any prayer for
implementation of Town Planning Scheme, it would
not possible for this Court to issue any direction in this
regard. However, it is open for the petitioner to prefer
separate petition seeking implementation of the
preliminary scheme qua his plots.
11.7 Further, this Court on perusal of the order dated
03.11.2022 in light of affidavit-in-reply and other
materials placed before this Court by way of various
affidavits finds that there is no error committed by the
authority while passing the order dated 03.11.2022
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
and, therefore, the same is not required to be
interfered with.
11.8 In view of the above, present petition is
required to be dismissed and accordingly dismissed. I
do not see any error committed either by the authority
during the entire procedure till preliminary Town
Planning scheme was sanctioned or thereafter. It is the
petitioner who has missed the opportunity and did not
raise any objection in respect of substantial changes at
the relevant point of time for which the Government
machinery cannot be claimed.
12. In view of above discussion, present petition is
dismissed. Rule is discharged. No order as to costs.
Parties are directed to act in accordance with
agreement arrived at between parties on 01.03.2023
which is already recorded in forgoing paras of this
order. The original record seized by this Court to be
handed over to learned advocate Mr.Dhaval Nanavati
who has appeared for Surat Municipal Corporation in
this petition and to obtain receipt from learned
advocate Mr.Dhaval Nanavati that he has received the
C/SCA/2964/2023 JUDGMENT DATED: 14/03/2023
original record intact.
ORDER IN SPECIAL CIVIL APPLICATION NO.2964 OF 2023:
1. In view of the order passed in Special Civil
Application No.23828 of 2022 as the issue has been
decided finally, no further orders are required in this
petition as Special Civil Application No.23828 of 2022
is decided on merits which also takes care of the issue
agitated in this petition i.e. Special Civil Application
No.2964 of 2022.
2. Accordingly, this petition is disposed of. Notice is
discharged. No order as to costs.
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
