Hamidkhan S/O Bashirahmedkhan ... vs Ahmedabad Municipal Corporation
2023 Latest Caselaw 2494 Guj

   C/SCA/5253/2023                                         ORDER DATED: 24/03/2023




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CIVIL APPLICATION NO.                            5253 of 2023

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       HAMIDKHAN S/O BASHIRAHMEDKHAN SAMSHUKHAN
                         Versus
            AHMEDABAD MUNICIPAL CORPORATION
=====================================================
Appearance:
MR SAMIR AFZAL KHAN(3733) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
=====================================================

 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                            Date : 24/03/2023

                                  ORAL ORDER

1. Heard learned advocate Mr. Samir Afzal Khan

appearing for the petitioner and as learned

advocate Mr. Satyam Chhaya was instructed by

this Court to appear on advance copy, learned

advocate Mr. Satyam Chhya appearing for the

Ahmedabad Municipal Corporation.

2. By way of this petition, the petitioner has

prayed for the following reliefs :-

"(A) Be pleased to admit and allow the application.

(B) Be pleased to hold that once 1st

C/SCA/5253/2023 ORDER DATED: 24/03/2023

Notice u/s 68, rule 33 of said Act dated 12/03/1987 is already issued thereafter 34 years later subsequent notice u/s 67 of said Act at "annexure-J-1" dated 19- 23/07/2021 and 2nd Notice u/s 68 of said act, Rule-33 of said rule dated 16/09/2021 at "Annexure-K-1" are beyond jurisdiction, and also after hearing the order passed dated 18/03/2023 at "Annexure-L-4" redundant and illegal and bar by section 52 of said Act as the same is without Sanction/Variation and also bar under section 20(2) of the said act as after 34 years of Notice same is implemented now therefore be pleased quashed the same in the interest of justice -

And

Thereby be pleased to hold that the petitioner is valid title holder of the land prior to Notice (Sec.68/33 rule) dated 12/03/1987 and therefore respondents have violated may be directed to handover peaceful and vacant possession of commercial land in the Final Plot No.243 to the extent of 39.2 sq.mts as per Town Planning Scheme No.30 (Asarwa Nort Ext), Ahmedabad to the Petitioner herein and until then the possession of the petitioner may not be disturbed in the interest of the justice;

Alternatively

Be pleased to hold that the petitioner is entitle to get compensation as provided u/ s 82 of said Act for his 70 years Old Registered commercial shop to the extent of 39.2 sq.mts. by market value because by said demolition entire shop merged into road as provided u/s 125 of the said Act because said shop was earlier covered

C/SCA/5253/2023 ORDER DATED: 24/03/2023

under the Old the Bombay Town Planning Act, 1954 while after new Act direct Notice under Section 68, rule 33 of said Act was issued on 12/03/1987 and petitioner has sought compensation immediately but unpaid; therefore he is entitled for compensation u/s 82 of said Act in case of Respondent failed to hand over commercial vacant land in Final Plot No:243 to the petitioner in the interest of justice.

(C) In the meanwhile, Be pleased to order that pending hearing and final disposal of this petition, the respondents herein be directed not to take possession of land the petitioner until the respondent may not handover peaceful and vacant possession of Final Plot No. 243 as per Town Planning Scheme No.30 (Asarwa North Extension), pursuance to notices at "Annexure-L-4" Ahmedabad to the Petitioner herein in the interest of the justice;

(D) Be pleased to grant such other and further relief as may be deemed proper in the facts of the case."

3. The prayer made in the petition would indicate

that the order dated 18.3.2023 is the latest

order passed by the Ahmedabad Municipal

Corporation which is subject matter of

challenge.

4. Earlier the petitioner had preferred Special

Civil Application No.14175 of 2021, wherein also

C/SCA/5253/2023 ORDER DATED: 24/03/2023

the petitioner had prayed for the following

reliefs :-

"(A) Be pleased to admit and allow the application.

(B) Be pleased to hold that once the notification under section 68, rule 33 of said Act dated 12/03/1987 is already issued then after 34 years subsequent notice u/s 67 of said Act at "annexure-J- 1" dated 19-23/07/2021 and another notification u/s 68 of said act, rule-33 of said rule dated 16/09/2021 at "Annexure-K-1" are beyond Jurisdiction, redundant and illegal and bar by section 52 of said Act as the same is without Sanction/Variation and also bar under section 20(2) of the said act as after 34 years of Notification same is implemented now therefore be pleased quashed the same in the interest of justice -

And

Thereby be pleased to hold that the petitioner is valid title holder of the land prior to Notification dated 12/03/1987 and therefore respondents may be directed to handover peaceful and vacant possession of commercial land in Final Plot No.243 to the extent of 39.2 sq.mts as per Town Planning Scheme No.30 (Asarwa Nort Ext), Ahmedabad to the Petitioner herein and until then the possession of the petitioner may not be disturbed in the interest of the justice;

Alternatively

Be pleased to hold that the petitioner is

C/SCA/5253/2023 ORDER DATED: 24/03/2023

entitle for the compensation as provided u/s 82 of said Act for his commercial property u/s 125 of the said Act i.e. the land was covered under the Bombay Town Planning Act, 1954 and direct Notification under Section 68, rule 33 of said Act was issued on 12/03/1987 and petitioner has sought compensation immediately; therefore he is entitled for compensation u/s 82 of said Act in case of Respondent failed to hand over commercial vacant land in Final Plot No:243 to the petitioner in the interest of justice.

(C) In the meanwhile, Be pleased to order that pending hearing and final disposal of this petition, the respondents herein be directed not to take possession of land the petitioner until the respondent may not handover peaceful and vacant possession of Final Plot No. 243 as per Town Planning Scheme No.30 (Asarwa North Extension), Ahmedabad to the Petitioner herein in the interest of the justice;

(D) Be pleased to direct the respondents herein particularly respondent no.2 herein to take steps to remove the possessor of the Final Plot No.243 of Town Planning Scheme No.30 (Asarwa North Extention), Ahmedabad to the extent of 39.2 sq.mts and thereby also to consider the representation of the Petitioner and to take steps accordingly in the interest of justice;

(E) Be pleased to grant such other and further relief as may be deemed proper in the facts of the case."

5. A comparison of reliefs prayed for in this

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petition as well as in Special Civil Application

No.14175 of 2021 preferred by the petitioner

which was disposed of vide order dated 7.1.2023

would indicate that the prayers made in both the

petitions were more or less same. However, after

the aforesaid petition being Special Civil

Application No.14175 of 2021 as the petitioner

was heard and an order dated 18.3.2023 was

passed, the petitioner has preferred this

petition whereby additionally the petitioner has

challenged the order dated 18.3.2023, which was

not the subject matter of challenge in earlier

round of litigation.

6. The grievance of learned advocate Mr. Samir

Afzan Khan appearing for the petitioner is

that :-

6.1 In the year 1910-1920, one Patel

Shantilal Mohanlal constructed certain rooms and

shops and in the year 1970-1971, the father of

the petitioner took one of the shops on rent and

started selling grains. In the year 1973, the

C/SCA/5253/2023 ORDER DATED: 24/03/2023

petitioner's father started flour factory viz.

Nagrik Flour Factory and started paying Tax of

the Municipal Corporation, light bills etc., he

also applied for license for the flour factory

and the same was given. All these documents are

relied upon by the petitioner to establish that

the petitioner is carrying on his business at

the aforesaid place since 1970-1971.

6.2 It is the case of the petitioner that

the shops which was taken by the petitioner on

rent was constructed on Revenue Survey No.567/B

paiki and the same was given Plot No.150 which

subsequently the petitioner purchased.

6.3 According to learned advocate Mr. Samir

Afzal Khan appearing for the petitioner that the

land-in-question is situated on Original Plot

No.150 which was given Final Plot No.243 after

the Preliminary Town Planning Scheme in respect

of Asarwa was sanctioned in the year 1978.

6.4 Though the Preliminary Town Planning

C/SCA/5253/2023 ORDER DATED: 24/03/2023

Scheme was sanctioned in the year 1978, the same

could not be implemented even for the purpose of

widening of the road, for the reason that some

people including the petitioner were having

there residential and commercial establishments

on the land which was earmarked for Town

Planning Road. For which, time to time notices

under Sections 67 and 68 read with Rule 33 were

given to the petitioner. However, on one ground

or another or for one reason or another, those

notices could not be adjudicated and ultimately,

a notice dated 16.9.2021 under Section 68 read

with Rule 33 of the Town Planning Act was given

to the petitioner.

6.5 The petitioner challenged the aforesaid

dated 19-23/07/2021 and by way of Special Civil

Application No.14175 of 2021 and when the

petition was heard on 7.1.2023, learned advocate

appearing for the Ahmedabad Municipal

Corporation made a statement that the petitioner

C/SCA/5253/2023 ORDER DATED: 24/03/2023

would be heard and unless the petitioner is

heard and an objections are considered, the

Corporation will not take any coercive action

against the petitioner and therefore, the

petitioner did not press the petition and

participated in the process as prescribed under

Town Planning Act and after hearing the

petitioner, the order dated 18.3.2023 was

passed, whereby the petitioner was directed to

handover possession of the land bearing original

Plot No.150 and more particularly to hand over

the possession of the land for the purpose of

9.14 meter Town Planning Road.

7. Being aggrieved by the aforesaid, the present

petition is preferred.

8. Learned advocate Mr. Samir Afzal Khan appearing

for the petitioner made lengthy submissions

however, crux of the submission is as under :-

(i) That the petitioner is valid title

holder and therefore, his land could not

C/SCA/5253/2023 ORDER DATED: 24/03/2023

have been taken away even if, the

Preliminary Town Planning Scheme has

become final.

(ii) If the petitioner's land is required

for implementation of Preliminary Town

Planning Scheme in that case, the

petitioner is required to be paid

compensation as per Section 82 of the Town

Planning Act.

(iii) The Corporation or the State either

of the Authorities have not complied with

the provision of Section 20(3) of the Town

Planning Act.

(iv) It is not open for the Authority to

issue notice under Section 67 and 68 read

with Rule 33 more than once. If any notice

is given more than once, the same can be

said to be illegal and hence, it would

vitiate entire proceedings.

(v) The petitioner's case is required to

C/SCA/5253/2023 ORDER DATED: 24/03/2023

be considered for acquisition of land and

accordingly compensation is required to be

paid to the petitioner.

9. Apart from aforesaid submissions, no other

submissions were made by learned advocate Mr.

Samir Afzal Khan appearing for the petitioner.

10. Learned advocate Mr. Samir Afzal Khan did

not rely upon any of the judgment of either this

Court or of the Hon'ble Supreme Court or any

other High Courts.

11. Learned advocate Mr. Satyam Chhaya appearing for

the Ahmedabad Municipal Corporation on advance

copy as per the direction of this Court

vehemently opposed the petition and submitted

that the petitioner is trying to mislead this

Court by abusing the process of law and misusing

the process of law. Learned advocate Mr. Satyam

Chhaya submitted that the petitioner, after the

Town Planning Scheme is sanctioned is

challenging the notice which has been decided

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vide order dated 18.3.2023, on the ground that

the requirement of Section 20(3) has not been

followed. However, he states that the aforesaid

procedure related to Section 20(3) would be

required to be followed in respect of

Development Plan and not for the purpose of

framing of Town Planning Scheme.

11.1 The procedure prescribed under the Act

starts from Section 40 onwards. The petitioner

seems to have misread the provisions of Town

Planning Act completely and therefore, the

submissions made by learned advocate appearing

for the petitioner in respect of not following

the procedure as prescribed under Section 20(3)

of the Act is absolutely irrelevant for the

purpose of deciding this petition and therefore,

the same may not be considered by this Court.

11.2 As far as the submission about the

petitioner have valid title is concerned,

learned advocate Mr. Satyam Chhaya appearing for

the respondent submitted that it is because the

C/SCA/5253/2023 ORDER DATED: 24/03/2023

petitioner is having valid title at every stage

the opportunities were given to the petitioner,

which either the petitioner did not avail and

whenever availed, the petitioner failed to

convince the Authority.

11.3 Learned advocate Mr. Satyam Chhaya also

submitted that what is important is that

adjudication of notice under Section 67 or under

Section 68 read with Rule 33 takes place and not

the number of times notices are issued. Learned

advocate Mr. Satyam Chhaya submitted that if any

notice which has been issued earlier has

remained undecided in that case, for

implementation of Town Planning Scheme, the

Implementing Authority can once again re-issue

the notice, which cannot be said to be

prohibited or barred by any of the provisions of

law. The law or the Act itself does not prohibit

the re-issuance of notice, as notices are

required to observe the principles of natural

justice and therefore, it is not the case of the

C/SCA/5253/2023 ORDER DATED: 24/03/2023

petitioner that once adjudication pursuant to a

notice has taken place and despite that once

again, the notice is issued to the petitioner

and therefore, the same is invalid. If the

authority deems it appropriate to re-issue the

notice after sometime, it is open for the

Authority to issue the notice for better and

effective implementation of Town Planning

Scheme.

11.5 Learned advocate Mr. Satyam Chhaya

further submitted that Section 67 of the Act

itself vest all the land which forms the part of

Preliminary Town Planing Scheme into the State

Government and therefore, even if the petitioner

has title, the title would cease to be with the

petitioner the moment Preliminary Town Planning

Scheme is sanctioned as per Section 65 of the

Act and therefore, the submission of learned

advocate Mr. Samir Afzal Khan that the

petitioner is having valid title of the land

cannot be considered once the Preliminary Town

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Planning Scheme has been sanctioned by the

Authority.

11.6 Learned advocate Mr. Satyam Chhaya

submitted that even if, the petitioner is having

valid license and is having Tax Bills and Light

Bills to indicate that he is in possession of

the land-in-question since last more than 50

years, the same cannot be said to be a ground to

stall the implementation of Town Planning Scheme

which has been finalized.

11.7 Lastly, learned advocate Mr. Satyam

Chhaya submitted that an application for

compensation was required to be made by the

petitioner at the stage of Section 52(3) of the

Town Planning Act. However, the record indicates

as pointed out by the learned advocate Mr. Samir

Afzal Khan that first such application for

compensation was given by the petitioner in form

of a representation in the year 1987, after the

Preliminary Town Planning Scheme was sanctioned

in the year 1978. By making the aforesaid

C/SCA/5253/2023 ORDER DATED: 24/03/2023

submissions learned advocate Mr. Satyam Chhaya

prayed for dismissal of the petition with costs.

11.8 Learned advocate Mr. Satyam Chhaya also

submitted that the petitioner has miserably

failed in pointing out the error committed by

the Authority, who has adjudicated the notice

under Section 68 read with Rule 33 pursuant to

the order passed by this Court on 7.1.2023 in

Special Civil Application No.14175 of 2021.

11.9 By making the aforesaid submissions,

learned advocate Mr. Satyam Chhaya prayed for

dismissal of the petition.

12. I have heard learned advocates appearing

for the respective parties and perused the

documents. On perusal of the documents this

Court finds that the Preliminary Town Planning

Scheme was sanctioned in the year 1978 and

thereafter thrice the scheme was varied.

However, as far as the petitioner's original

Plot No.150 for which Final Plot No.243 is

C/SCA/5253/2023 ORDER DATED: 24/03/2023

allotted has never been a matter of variation at

the time of any of the variation and therefore,

the scheme had become final as far as the

petitioner's final plot is concerned.

13. Further, what is important and required to

be seen is that the petitioner's land is

required for widening the Town Planning Road.

Though the scheme has been sanctioned in the

year 1978, even after almost 45 years, due to

the non-cooperation of petitioner, the scheme

could not be implemented and even at this stage

after availing sufficient opportunity the

petitioner has tried to challenge the same on

one ground or another. As far as the submission

of learned advocate Mr. Samir Afzal Khan about

title or having licenses etc are concerned, in

view of provision of Section 67 of the Act veste

all land required by the appropriate authority

in respect of Preliminary Town Planning Scheme

and therefore, the petitioner is having valid

title of the land or is having licenses etc

C/SCA/5253/2023 ORDER DATED: 24/03/2023

becomes absolutely irrelevant and

insignificance.

14. Considering the fact that the petitioner has

filed this petition after the Preliminary Town

Planning Scheme is sanctioned and has reached up

to the stage of implementation and therefore,

those arguments are absolutely irrelevant and

therefore, the land has already been vested in

State Government, those submissions are

rejected.

15. As far as the petitioner's submission in

respect of not following the procedure

prescribed under Section 20(3) of the Act is

concerned has rightly pointed out by learned

advocate Mr. Satyam Chhaya, the provision of

Section 20(3) would apply to Draft Development

Plan and not at this stage. The petitioner has

misread the provisions of law and could not

point out from the record that once the Draft

Town Planning Scheme was intimated thereafter

any of the objections of the petitioner were not

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considered by the Authority or the Authority has

not heard the petitioner.

16. Once the petitioner has participated in the

adjudication process pursuant to the notice

under Section 68 read with Rule 33, the

petitioner could have raised all the objections

before the Authority. However, despite the

Authority having considered the petitioner's

objection, once again the petitioner is

reiterating those facts without there being any

documentary evidence in support of those

submissions. In absence of there being any

supportive material in the form of documentary

evidence, this Court is not in a position to

consider the submissions made by learned

advocate Mr. Samir Afzal Khan that at the

relevant point of time, the petitioner was not

heard or his objections were not considered.

17. On perusal of impugned order dated

18.3.2023, this Court finds that the Authority

has not committed any error and the order is a

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reasoned order in consonance with the provisions

of Act.

18. In view of above discussion, this Court do

not find any merit in this petition and hence,

the same is required to be dismissed and

accordingly dismissed.

(NIRZAR S. DESAI,J)

Pallavi