Gujarat High Court
Panchal Jagdishbhai Prabhubhai vs State Of Gujarat on 1 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7859 of 2021
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 3
of 2021
In R/SPECIAL CIVIL APPLICATION NO. 7859 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
===================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy 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 ?
===================================================
PANCHAL JAGDISHBHAI PRABHUBHAI
Versus
STATE OF GUJARAT
===================================================
Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3
,30,31,32,33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,
50,51,52,53,54,55,56,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,7
0,71,72,73,74,75,76,77,78,79,8,80,81,82,83,84,85,86,87,88,89,9,90
Page 1 of 46
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,91,92,93,94,95
MR NANDISH Y CHUDGAR(2011) for the Respondent(s) No. 2,3
MR. SHALIN MEHTA, SENIOR COUNSEL WITH MR. MRUGESH A
BAROT(6709) for the Respondent(s) No. 4
MS. DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
===================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/02/2024
CAV JUDGMENT
1. RULE, returnable forthwith. Learned advocates
appearing for the respective parties waive service of Rule for and
on behalf of the respective parties.
2. By way of the present Petition, petitioners herein
have prayed for the following reliefs:
"(A) that the Hon'ble Court be pleased to issue a writ of
mandamus and/or certiorari or a writ in the nature of mandamus
and/or certiorari or any other appropriate writ, order or direction
(i) quashing and setting aside Town Planning Scheme No. 45/B
Chandlodiya to the extent it pertains to land bearing Final Plot
No. 21/1 and 21/2, Original Plot No.21, Revenue Survey No.80,
Village Chandlodiya, District Sub-District Ahmedabad;
Alternatively,
commanding the respondents to take all steps to vary Town
Planning Scheme No. 45/B, Chandlodiya to the extent it pertains
to land bearing Final Plot No. 21/1 and 21/2, Original Plot
No.21, Revenue Survey No.80, Village Chandlodiya, District, Sub-
District Ahmedabad so as not to treat road situated between
Final Plot No. 21/1 and 21/2, Original Plot No.21, Revenue
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Survey No.80, Village Chandlodiya, District Sub-District
Ahmedabad as a public street and not to deduct any land from
Original Plot No.21, Revenue Survey No.80, Village Chandlodiya,
District, Sub-District Ahmedabad;
(ii) Commanding the Respondents not to treat and /or use road
situated between Final Plot No. 21/1 and 21/2, Original Plot
No.21, Revenue Survey No.80, Village Chandlodiya, District Sub-
District Ahmedabad as a public street in any manner;
(iii) Quashing and setting aside order dated 29.04.2021 passed by
Assistant Town Planning Officer (North West Zone) (at Annexure
T);
(B) that pending the hearing and final disposal of this petition,
the Hon'ble Court be pleased to stay Town Planning Scheme No.
45/B Chandlodiya to the extent it pertains to land bearing Final
Plot No. 21/1 and 21/2, Original Plot No.21, Revenue Survey
No.80, Village Chandlodiya, District, Sub-District Ahmedabad;
(C) that pending the hearing and final disposal of this
petition, the Hon'ble Court be pleased to restrain the Respondents
from treating and/or using the road between Final Plot No. 21/1
and 21/2, Original Plot No.21, Revenue Survey No.80, Village
Chandlodiya, District Sub-District Ahmedabad as a public street
in any manner;
(D) that pending the hearing and final disposal of this petition,
the Hon'ble Court be pleased to stay order dated 29.04.2021
passed by Assistant Town Planning Officer (North West Zone) (at
Annexure T)
(E) for ad-interim relief in terms of prayer (B), (C) and (D)
above;
(F) For costs;
(G) for such other and further reliefs as the circumstances may
require."
3. Brief facts leading to the filing of the present Petition
read thus:
3.1. The petitioners are the occupants of various sub-plots
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situated at Raykanagar Society, Chandlodiya, Ahmedabad. The
dispute in question pertains to the land admeasuring Acre 2-07
Guntha bearing Survey No. 80, Village: Chandlodiya, District
Sub-District: Ahmedabad. The said land was originally owned by
one Bababhai Vithhaldas, who passed way on 13.04.1983. The
said land came to be sold to promoters of Raykanagar
Cooperative Housing Society (proposed). The Society was
developed from 1984 and 96 sub-plots and internal roads were
carved out on Survey No. 80 and the said plots were sold to
various persons. At present, approximately 137 residential units
are situated on the said land. The main internal road of the
society is of approximately the width of 15 to 25 feet, which
ends at sub-plot no. 96. There is a temple on Survey No. 96,
which was built with contributions of residents of the society.
The internal roads including the one that leads to the temple are
used by the residents also for the purpose of parking their
vehicles, for organizing events like marriage, other social
gathering, prayer meetings, religious functions as well as, as a
space for children to play. The petitioners apprehend that the
implementation of the Scheme in question, would result in
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eventual demolition of the temple and many parts of residences,
which abut on the said internal road.
3.2. To the west of revenue Survey No. 80 their lies
revenue Survey No. 93, which came to be divided into Survey
No. 93/1 and 93/2. Land bearing revenue Survey No. 93/2 also
belonged to Bababhai Vithhaldas, who sold it to Dharmaji
Achalaji, Bhimaji Achalaji, Baldevbhai Achalaji and Naranbhai
Achalaji vide registered sale deed dated 17.06.1968. In the year
1996, said Shakariben and Dharmaji Achalaji and others filed
Regular Civil Suit No. 771 of 1996 against the promoters of
Raykanagar Society bearing Survey No. 80, claiming right of
way. It was contended that the only way to Survey No. 93/2 was
from Survey No. 80. The said Suit came to be dismissed by the
Joint Civil Judge (S.D.), Mirzapur vide judgment and decree
dated 29.06.2019, wherein, it was held that the plaintiffs had
their road to access land bearing Survey No. 93/2 elsewhere.
3.3. The respondent No.2 - Ahmedabad Municipal
Corporation introduced Town Planning Scheme No. 45/B-
Chandlodiya in such a way that it gave access to land bearing
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Survey No. 93/2 from an internal road of the society proceeding
on an assumption, as if the internal road is a public street.
Under the Town Planning Scheme, revenue Survey No. 80 is
allotted Original Plot No. 21 and Final Plot Nos. 21/1 and 21/2.
The internal private road is shown as a 7.5 meter public road. It
shows deduction of a very small portion of land which forms
part of Sub-Plot No. 96 and Sub-Plot No.6. That half of land of
Survey No. 96 has a temple of a deity and the other half is lying
vacant. The implementation of the Town Planning Scheme, by
deducting a small portion of land lying vacant of sub-plot No. 96
admeasuring approximately 100 sq.mtrs. turned a blind eye and
so far as the internal road is concerned, it proceeded as if it was
a public street.
3.4. The Chairman/ Secretary of Raykanagar Society
addressed a communication dated 23.05.2016 to the Chief City
Planner, objecting to the draft Scheme, contending that the
private road of the society is wrongly shown as a public street.
Further, the civil proceedings were pending, the road cannot be
laid from sub-plot no.96, which is of the private ownership. On
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25.06.2016, the respondent Corporation published a notification,
considering the representation made by the petitioners.
3.5. It is the case of the petitioners that the respondent
Corporation took no steps to address the issues raised by the
petitioners. The society raised objections on 07.04.2018, copy of
which is duly produced at Annexure-O. The respondent no.2 -
Corporation issued notices dated 02.02.2021 under Section 48-A
r/w. Section 68 of the Gujarat Town Planning and Urban
Development Act (for short 'the TP Act') r/w. Rule-33 stating
that on reconstitution of the original plot, the land as per the
attached sketch was allotted for use under Section 40(3)(c), (f),
(g) and (h) and that the said land shown in yellow colour be
handed over in 10 days. One Notice was addressed to
Administrator / Raykanagar Welfare Association (Shri Ambe
Mataji Mandir), another to Chairman / Secretary Shri Raykanagar
Society and the third to Panchal Deviben Ramabhai - petitioner
no. 8 herein. The first two notices were pasted on the walls. The
respondent no.2 called upon the petitioners for a hearing vide
notice dated 25.03.2021. Upon hearing on 08.04.2021, the
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respondent no.2 called upon the petitioner society to handover
the possession of the land in question within 7 days, vide order
dated 29.04.2021, copy of the same is duly produced at
Annexure-T. It is the case of the petitioners that while issuing
the impugned communication, the respondent no.2 did not take
into consideration the issues raised by the petitioner. The
petitioners addressed a notice dated 07.05.2021 objecting to the
scheme, which is duly produced at Annexure-U.
3.6 In light of the aforesaid facts, the petitioners are
constrained to approach this Court invoking Article-226 of the
Constitution of India challenging the Town Planning Scheme and
other consequential and allied reliefs as stated herein-above.
4. Heard Ms. Megha Jani, learned advocate appearing
for the petitioners, Mr. Nandish Y. Chudgar, learned advocate
appearing for the respondent nos.2 and 3, Mr. Shalin Mehta,
learned senior counsel assisted by Mr. Mrugesh A. Barot, learned
advocate appearing for the respondent no.4 and Ms. Dhwani
Tripathi, learned Assistant Government Pleader appearing for the
respondent - State.
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SUBMISSIONS ON BEHALF OF THE PETITIONERS:
5.1. Ms. Megha Jani, learned advocate appearing for the
petitioners submitted that the Town Planning Scheme in question
is overreaching the process of law as the same is administrative
order, which violates the judicial order, whereby, the Suit which
was filed by the erstwhile owner being Regular Civil Suit No.
771 of 1996 came to be dismissed.
5.2. It was submitted that the Town Planning Scheme in
question has been introduced to facilitate the rights of the private
respondent and to accommodate the respondent no.4.
5.3. It was submitted that the aforesaid has not been
considered by the respondent authority, while issuing Notice
under Section 48-A r/w. Section 68 of the T.P.Act r/w. Rule-33,
wherein, it is stated that on reconstitution of the original plot,
the land as per the attached sketch was allotted for use under
Section 40(3)(c), (f), (g) and (h) and that the land shown in
yellow colour be handed over in 10 days. Ms. Jani, learned
advocate placed reliance on the distinction between the legislative
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and executive order. It was submitted that order passed by the
Town Planning Officer being a legislative order, the same cannot
be held to be superior to judicial order i.e. issuance of the said
Town Planning Scheme is violative of the judicial proceedings,
that is the dismissal of the Suit being Regular Civil Suit No. 771
of 1996. It was submitted that the said scheme even otherwise,
falls within Clause-E of sub-section and that it is erroneous to
have considered the same as to fall under Section 40(3)(c).
5.4. Reliance was placed on S.R. Bhagwat and others v/s.
State of Mysore reported in (1995) 6 SCC 16, to substantiate the
aforesaid contentions.
5.5. Ms. Jani, learned advocate also relied on the decision
rendered by this Court in Special Civil Application No. 22042 of
2022 decided on 27.02.2023.
5.6. It was submitted that there is no obligation upon the
respondent authority to carve a way and facilitate a right of way
to the respondent no.4.
5.7. It was submitted that though the draft Town Planning
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Scheme is sanctioned, the authority cannot demolish the
construction and it could not vest with the authority.
5.8. Reliance was placed on the GDCR, which is duly
produced at Pg.-435 and it was contended that there is a
separate provision under GDCR with respect to the land, which is
land locked. It was reiterated that the in view of the aforesaid,
the prayers as prayed for by the petitioners herein be allowed.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 2 AND
3 AHMEDABAD MUNICIPAL CORPORATION:
6.1. Mr. Nandish Y. Chudgar, learned advocate appearing
for the respondent nos.2 and 3 relied on the affidavit-in-reply
filed by the respondent nos. 2 and 3 and submitted that the
respondents have taken action in accordance with law and in
accordance with the provisions of the T.P. Act. Reliance was
placed on the map depicting the draft Town Planning Scheme
No. 45-B (Chandlodiya), as sanctioned by the State Government
under Section 48(A) of the TP Act, duly produced at Annexure-R-
2.
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6.2. It was submitted that once the draft Town Planning
Scheme has been sanctioned by the State Government under
Section 48(2) of the TP Act, all the lands required by the
Appropriate Authority (AMC) for the purpose of laying out of
new streets or roads and construction thereof, vest absolutely in
the Appropriate Authority (AMC in the present case), free from
all encumbrances.
6.3. It was submitted that on and from 06.06.2017, the
land in question which now in the sanctioned draft T.P. Scheme
is shown as public street / road within Survey No. 80 (which is
now allotted Final Plot Nos. 21/1 and 21/2) going upto Final Plot
No. 70 and Original Survey No. 93/2 (Final Plot No. 34) vest
with AMC in view of the sanction of the Draft TP Scheme No.
45-B (Chandlodiya) by the State Government and by virtue of
Section 48-A(1) of the TP Act. It was submitted that Final Plot
(FP)No. 70, which is just adjacent to Survey No. 80 (which is
now allottted FP No. 21/1 and 21/2) of the petitioners has been
reserved for public purpose. It was submitted that for accessing
Final Plot No. 70 and reaching there, the only access available is
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through the 7.5 meters TP road passing through Survey No. 80
(which is now allotted FP No. 21/1 and 21/2). It was submitted
that the plot at Final Plot No. 70 which is reserved for public
purpose, may be developed for any appropriate public purpose
and may be developed into an Urban Health Centre or an
Anganwadi or a Community Hall / Auditorium or even a Public
Garden. It was submitted that there is no other appropriate
accessible road for accessing the said F.P. No. 70 reserved for
public purpose, as also for original survey No. 93/2 (FP No. 34).
6.4. It was submitted that so far as the reliance placed by
the petitioners on the judgment of the Civil Suit (Ahmedabad
Rural) at Ahmedabad being Regular Civil Suit No. 771 of 1996
passed on 29.06.2019, the same has no relevance to the real
issue involved in the present petition. It was substantiated that
what has been adjudicated by the Civil Court in the said Suit is
the dispute between the parties therein / private parties. The
respondent no.2 (AMC) was also not party to the said suit
proceedings. It was submitted that, even otherwise the judgment
in the said Suit, does not prohibit or restrict the respondent no.2
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in consultation with the Chief Town Planner under the provisions
of the T.P. Act from preparing a Town Planning Scheme, which
provides for T.P. Road of 7.5 meters to pass through Survey No.
80, so as to give access to F.P. No. 70, which is reserved for
public purpose and Original Survey No. 93/2 (F.P. No. 34).
6.5. It was submitted that the respondent authority has to
follow the provisions of the T.P. Act, after having called for the
objections from the society which owns Survey No. 80, which
has been considered and also forwarded to the State Government
and after considering the fact that there is no other access to
F.P. No.70, which is reserved for public purpose that the
Appropriate Authority in consultation with the Chief Town
Planner was constrained to make provisions for a 7.5 meters TP
road passing through Survey No.80, so that the said FP No.70 is
provided with appropriate road for access to it, considering the
fact that the said FP No.70 is reserved for public purpose.
6.6. It was submitted that by filing the present Petition,
petitioners failed to appreciate the hardship faced by the public
at large, by not giving vacant possession of the land within
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Survey No.80, which in fact vest with the Appropriate Authority,
i.e. respondent no.2 - AMC for the purpose of laying and
constructing a public street / public road in accordance with the
Draft TP Scheme No. 45-B (Chandlodiya) as sanctioned by the
State Government under Section 48(1) of the TP Act. It was
submitted that notice came to be issued by the respondent no.2
to the petitioners under Section 68 of the T.P. Act r/w. Rule-33
of the T.P. Rules, for personal hearing, if they had any objection
to summary eviction. The petitioner and / or the Chairman
Secretary of Raykanagar Society refused to accept the service of
notice, and therefore, the said notice came to be affixed at the
site, reliance was placed on the photographs evidencing the
same, which are duly produced at Annexure-R-3. The petitioners
were called upon for hearing by the Assistant Town Development
Officer on 08.04.2021, where the petitioners as well as the
owners of the original Survey No. 80 and the members of
Raykanagar Society were heard; their written representations
were also taken into consideration. Thereafter, on 29.04.2021, the
Assistant Town Development Officer passed a reasoned and
speaking order, which is impugned in the present petition,
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rejecting the representation of the petitioners, while requiring the
occupiers to give the vacant and peaceful possession on the said
TP road passing through Survey No. 80, copy of the same is duly
produced at Annexure-R-5.
6.7. Mr. Chudgar, learned advocate placed reliance on the
ratio as laid down by the Hon'ble Division Bench in Letters
Patent Appeal No. 401 of 2018, decision dated 09.04.2018.
6.8. Placing reliance on the aforesaid submissions, it was
submitted that the petitioners rather than abiding by the
provisions of the T.P. Act, approached this Court. It was lastly
submitted that the petitioners are required to vacate the said
portion of Survey No. 80 and handover the possession to the
answering respondent, for the purpose of laying of public roads.
Even by virtue of Section 48A of the T.P. Act, the said land for
the purpose of public road vest with with Appropriate Authority
- respondent AMC. It was submitted that the ex-parte ad-interim
relief granted earlier be vacated and the petition be dismissed in
limine.
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SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.4:
7.1. Mr. Shalin Mehta, learned senior counsel assisted by
Mr. Mrugesh A. Barot, learned advocate appearing for the
respondent no.4, placed reliance on the Affidavit-in-Reply filed
by the respondent no.4, at Page-285 and an Additional Affidavit
filed by the respondent No.4 at Page-465.
7.2. Mr. Mehta, learned senior counsel submitted that the
intention of the Town Planning Scheme was made as back as on
29.09.2015 and the same was published in daily newspaper on
10.10.2015. As far as the present respondent no.4 is concerned,
the registered sale deed came to be executed with respect to the
original survey no. 93/2 (FP No. 34) on 21.09.2020 and
therefore, the allegations levelled in the petition, with respect to
the collusion and mala-fide intention is concerned, the same is
baseless and far from truth.
7.3. It was submitted that on implementation of the
aforesaid preliminary Town Planning Scheme, as a statutory
deduction from the original revenue Survey No. 80, a 7.5 meters
T.P. Road has been sanctioned, so as to give access to the
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owners of Final Plot No. 34 as well as Final Plot No.70.
7.4. It was submitted that under the provision of the T.P.
Act, more particularly, Section 48-A(1), the draft TP Scheme has
been sanctioned by the State Government under Section 48(2) of
the TP Act, all the lands required by the Appropriate Authority -
AMC for the purpose of laying out of streets or roads and
construction thereof, vest absolutely in the Appropriate Authority
- AMC, free from all encumbrances. It was submitted that on
and from 06.06.2017, the land in question which is public road /
street, within Survey No. 80 (which is now allotted FP No. 21/1
and 21/2) accessing upon Final Plot No. 70 and Original Survey
No. 93/2 (FP No. 34) vest with the corporation in view of the
sanction of the draft TP Scheme No. 45-B (Chandlodiya) by the
State Government, by virtue of Section 48-A(1) of the TP Act.
7.5. Placing reliance on the order passed by the Civil
Court, Ahmedabad in Regular Civil Suit No. 771 of 1996 dated
29.06.2019, it was submitted that the Civil Court in the said suit
has adjudicated the dispute between the private parties. The Suit
was filed for easmentary rights between the private parties,
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which came to be dismissed. The said decree / judgment does
not prohibit or restrict the respondent no.2 - AMC in
consultation with the Chief Town Planner, under the provisions
of the TP Act from preparing the Town Planning Scheme, which
would provide for a TP road of 7.5 meters to pass through
Survey No. 80 so as to give access to FP No. 34 and FP No. 70.
7.6. It was submitted that the aforesaid exercise was
undertaken by the respondent no.2, after duly complying with
the provisions of the T.P. Act and the objections of the proposed
society - petitioner, and only thereafter the draft TP scheme in
question has been sanctioned.
8.1. Ms. Megha Jani, learned advocate appearing for the
petitioners, while rejoining to the submissions advanced by the
learned advocates appearing for the respondent nos. 2 and 4
placed reliance on the affidavit in rejoinder filed by the
petitioners, duly produced at Pg.304 and reiterated the
contentions raised earlier. However, it was further submitted that
if the lands belonging to the petitioners is a land-locked unit,
than it is not open for the respondent no.2 to lay a TP Scheme
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in administrative or executive capacity, the same being in
violation of the judicial pronouncement. It was submitted that the
cases of construction on a land locked plots are to be considered
under the Gujarat Development Control Regulations (GDCR), 2017
under Para-7.3.3. The respondent no.2 is not obliged to carve-out
the TP Scheme to provide approach to the respondent no.4.
9.1. In the facts of the present case, the plots are land-
locked, as owners of the particular plots failed to guard its right
of access that was available, have tried to establish its way
through somebody's land, also failed in the Court of law in
establishing its easementary right. It was submitted that the
respondents are not justified in making a scheme that overrides
adjudication by a Civil Court. The judgment does act as a
prohibition and restriction on AMC in acting contrary thereto.
9.2. Placing reliance on the aforesaid, it was submitted
that the prayers as prayed for in the present Petition be allowed.
10.1. Mr. Shalin Mehta, learned senior counsel appearing
for the respondent no.4 relied on the Additional Affidavit filed on
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behalf of the respondent no.4 and submitted that the present
petitioners came into the possession of the aforesaid land in view
of the unregistered possession agreement / supplementary
agreement dated 16.01.1986 executed between the original
owners and the plot holders. The aforesaid agreement mentioned
that there exists a right of way from the land bearing Survey No.
80 towards the land bearing Survey No. 93. It was submitted
that thereafter the registered sale deeds were not executed in
favour of the plot holders, however, the possession was taken
over by the plot holders of Survey No. 80. It was submitted that
without obtaining non-agriculture permission from the competent
authority, the residential houses have been constructed. The
construction plans were also not sanctioned by the competent
authority. It was submitted that the petitioners herein have
constructed the residential houses in an agriculture land that too
without obtaining any previous sanctions from the competent
authority. The petitioners herein themselves have not followed
the G.D.C.R. and in an illegal manner, the residential houses
have been constructed, without leaving margin area. The
petitioners are devoid of valid title in their favour as well as the
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construction made over land bearing Survey No. 80.
10.2. Placing reliance on the aforesaid submissions, It was
submitted that the present Petition be dismissed for want of title
qua the petitioners.
10.3. To the aforesaid contentions raised by Mr. Mehta,
learned senior counsel appearing for the respondent no.4, Ms.
Jani, learned advocate appearing for the petitioners placed
reliance on the applications preferred by the petitioners before
the competent authority on 30.06.2015 seeking regulation of the
unauthorized construction. It was submitted that the petitioners
herein also payed property tax and the same is duly produced at
Annexure-R-6.
11. On 23.06.2021, this Court while granting interim
relief, passed the following order:
"1. Ms.Megha Jani, learned advocate appearing for the
petitioners submitted that the Assistant Town Development
Officer, has passed the order dated 29.4.2020, requiring the
petitioners to hand over the possession of the land, which has
been designated as T.P. Road. It is submitted that the action on
the part of the Assistant Town Development Officer, is arbitrary
inasmuch as, it seeks to open up an internal private road of the
society. It is also submitted that a representation was made in
the year 2016; however, without addressing the issue raised by
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the society, the order dated 29.4.2020 has been passed, requiring
the society to hand over the possession of the land within seven
days. Clearly, the corporation is not the owner of the private
road and there is nothing to show as to how the road came to
be designated as T.P. Road.
2. It is next submitted that a Court of competent jurisdiction, has
adjudicated the disputes between the owners of land bearing
Survey No.80 and 93/2 and has declared that there is no right of
way for accessing the land bearing Survey No.93/2 from the land
bearing Survey No.80. When the Court of competent jurisdiction,
has given its judgment, designating the road as a T.P. Road, is
nothing but an act on the part of the respondent authorities to
overreach the pronouncement.
3. Reliance is placed on the judgment in the case of Hari Krishna
Mandir Trust v. State of Maharashtra & Others, reported in
(2020) 9 SCC 356. It is submitted that the Hon'ble Apex Court,
in paragraph 96 has held that the right to property may not be a
fundamental right, but is still a constitutional right under Article
300-A and a human right. It has also been held that in view of
the mandate of Article 300-A of the Constitution of India, no
person is to be deprived of his property save by the authority of
law.
4. Heard Ms. Megha Jani, learned advocate appearing for the
petitioners.
5. Considered the submissions. Issue Notice, returnable on
6.7.2021. In the meantime, let there be a status quo, qua, Final
Plot Nos.21/1 and 22/2, Original Plot No.21, Revenue Survey
No.80, Village, Chandlodiya, District Sub-District Ahmedabad.
Direct service is permitted."
12.1. At this stage, it is apposite to refer to Section 48-A of
the Town Planning Act, which reads thus:
"48-A. Vesting of land in appropriate authority- (1) Where a
draft scheme has been sanctioned by the State Government
under subsection(2) of Section 48, (hereinafter in this section,
referred to as `the sanctioned draft scheme'), all lands required
by the appropriate authority for the purposes specified in clause
(c),(f),(g) or (h) of sub-section (3) of Section 40 shall vest
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absolutely in the appropriate authority free from all
encumbrances. (2) Nothing in sub-section(1) shall affect any right
of the owner of the land vesting in the appropriate authority
under that subsection. (3) The provisions of Sections 68 and 69
shall mutatis mutandis apply to the sanctioned draft scheme as
if,- (i) sanctioned draft scheme were a preliminary scheme, and
(ii) in sub-section (1), for the words "comes into force", the
words, brackets and figures "the date on which the draft scheme
is sanctioned under sub-section(2) of Section 48" were
substituted.]"
12.1.1. Section 48-A of the T.P. Act provides that
where a draft town planning scheme has been sanctioned by the
State Government under Section 48(2), all the lands required by
the appropriate authority for the purposes specified in clause- (c),
(f), (g) or (h) of Section 40(3) of the T.P. Act shall vest
absolutely in the appropriate authority free from all
encumbrances. Further, Section 48-A (2) provides that nothing in
sub-section (1) shall affect any right of the owner of the land
vesting in the appropriate authority under the said sub-section.
Section 48(3) provides that the provision of Sections 68 and 69 of
the T.P. Act shall apply 'mutatis-mutandis' to the sanctioned
draft Scheme.
12.2. Section 40 (c), (e), (f), (g) and (h) of the Gujarat
Town Planning Act, 1976 reads thus:
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"Section 40 (c). lay-out of new streets or roads,
construction, diversion, extension, alteration, improvement
and closing up of streets and roads and discontinuance of
communications;
(d)xxx
(e) the allotment of (earmarked) of land for roads, open
spaces, gardens, recreation grounds, schools, markets,
green-belts, dairies, transport facilities, and public
purposes of all kinds;
(f) drainage, inclusive of sewerage, surface or sub-soil
drainage and sewage disposal;
(g) lighting;
(h) water supply'
xxx."
12.3. Section 68 and 69 of the Gujarat Town Planning Act,
1976 reads thus:
"68. Power of appropriate authority to evict summarily:
On and after the date on which a preliminary scheme comes into
force, any person continuing to occupy any land which he is not
entitled to occupy under the preliminary scheme shall, in
accordance with the prescribed procedure, be summarily evicted
by the appropriate authority."
12.3.1. Section - 69 Power to enforce scheme:
"(1) On and after the date on which the preliminary scheme
comes into force, the appropriate authority shall, after giving the
prescribed notice and in accordance with the provisions of the
scheme,
(a) remove, pull down, or alter any building or other work in the
area included in the scheme which is such as contravenes the
scheme or in the erection or carrying out of which any provision
of the scheme has not been complied with;
(b) execute any work which it is the duty of any person to
execute under the scheme in any case where it appears to the
appropriate authority that delay in the execution of the work
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would prejudice the efficient operation of the scheme.
(2) any expenses incurred by the appropriate authority under this
section shall be recovered from the person in default or from the
owner of the plot in the manner provided for the recovery of
sums due to the appropriate authority under the provisions of this
Act.
(3) If any question arises as to whether any building or work
contravenes a town planning scheme or whether any provision of
a town planning scheme is not complied with in the erection or
carrying out of any such building or work, it shall be referred to
the State Government and the decision of the State Government
shall be final and binding on all persons.
(4) No person shall be entitled to compensation in respect of any
damage, loss or injury resulting from any action taken by the
appropriate authority under the provisions of this section except
in respect of the building or work begun before the date referred
to in sub-section (1) and only in so far as such building or work
has proceeded until that date:
Provided that any claim to compensation, which is not barred
by this sub--section shall be subject to the condition of any
agreement entered into between the claimant and the appropriate
authority.
(5) The provisions of this section shall not apply to any
operational construction undertaken by the Central Government or
a State Government."
POSITION OF LAW:
13.1. Ms. Megha Jani, learned advocate appearing for the
petitioner relied on the decision in the case of S.R. Bhagwat and
Others v/s. State of Mysore reported in (1995) 6 SCC 16,
whereby, it was held that a binding judicial pronouncement
between the parties cannot be made ineffective with the aid of
any legislative power.
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13.1.1. The aforesaid judgment, in the opinion of this Court
is not applicable, in view of the fact that the judicial
pronouncement as relied upon by Ms. Jani, learned advocate
appearing for the petitioners is with respect to easmentary rights
between the private parties. The scheme in question is
considering the public interest, having assumed the force of
preliminary scheme, the scheme having been sanctioned under
Section 48(2) of the Town Planning Act specified under Sections
40(3)(c), (f), (g) and (h) of the T.P. Act for the purpose of laying
down public road.
13.2. It is also apposite to refer to the ratio as laid down
by the Hon'ble Division Bench in Letters Patent Appeal No. 401
of 2018, wherein, Paras-9, 10 and 14 reads thus:
"9. Having heard learned advocates appearing for the parties
and having gone through the material produced on record, it has
emerged that the petitioners are occupying the shops in question
for which the notice under Section 68 of the Act read with Rule
33 of the Rules came to be issued by the respondent Corporation
for implementation of the town planning scheme. As per the
draft scheme, 12 meters service road is required to be
constructed on the land in question where the shops of the
petitioners are situated. On receipt of the notices issued by the
respondent Corporation, the petitioners appeared before the
concerned authority of the respondent Corporation and made
representation as well as submitted the written submissions. It is
not in dispute that reasonable opportunity of hearing was
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granted to the petitioners by the respondent Corporation before
the impugned orders dated 21.2.2018 came to be passed by the
respondent Corporation. While rejecting the representations of
the petitioners, the respondent Corporation has placed reliance
upon the various provisions contained in the Act including
Sections 48-A, 40(3),(c) (f),(g) and (h). It is required to be noted
that the state government has granted approval on 10.9.2012 to
the draft scheme prepared by the respondent corporation.
10. At this stage, we would like to refer to the provisions
contained in Section 48-A of the Act which reads as under:
"48-A. Vesting of land in appropriate authority- (1) Where a
draft scheme has been sanctioned by the State Government
under subsection(2) of Section 48, (hereinafter in this section,
referred to as `the sanctioned draft scheme'), all lands required
by the appropriate authority for the purposes specified in clause
(c),(f),(g) or (h) of sub-section (3) of Section 40 shall vest
absolutely in the appropriate authority free from all
encumbrances. (2) Nothing in sub-section(1) shall affect any right
of the owner of the land vesting in the appropriate authority
under that subsection. (3) The provisions of Sections 68 and 69
shall mutatis mutandis apply to the sanctioned draft scheme as
if,- (i) sanctioned draft scheme were a preliminary scheme, and
(ii) in sub-section (1), for the words "comes into force", the
words, brackets and figures "the date on which the draft scheme
is sanctioned under sub-section(2) of Section 48" were
substituted.]"
14. In view of the above, the contention of the learned advocate
for the petitioners that at the stage of draft scheme, notice for
eviction cannot be issued to the petitioners is misconceived. It is
further required to be noted that respondent Corporation has
followed the principles of natural justice and reasonable
opportunity of being heard is given to the petitioners. Thus,
there is a substantial compliance of the provisions of the Act and
the Rules."
13.3. It is apposite to refer to the decision rendered by this
Court in Special Civil Application No. 22042 of 2022 decided on
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27.02.2023, wherein, the said petition came to be dismissed and
held thus:
"(16) The petitioners are asserting their case on the provision of
Clause (e) of sub-section (3) of Section 40 of the Act, by
contending that under the provision of Section 48(A), the land,
which falls under the said clause does not get vested in the State
Government, hence the provision of Sections 68 and 69 of the
Act will not get attracted, hence, they cannot be ordered to be
summarily evicted. In my considered opinion, the petitioners
have misdirected themselves in taking shelter under Clause(e) of
sub-section (3) of Section 40 of the Act and, in fact they will be
governed by Clause (c) instead of Clause(e). Clause (c) of sub-
section (3) to Section 40 of the Act specifically stipulates of
making provision for laying-out of new streets or roads,
construction,diversion, extension, alteration, improvement and
closing up of streets and roads and discontinuance of
communications, whereas Clause (e) to sub-section (3) of Section
40 pertains to the allotment or (earmarked) of land for roads,
open spaces, grounds, recreation grounds, school etc. Thus, the
language of Clause(c) and Clause(e) is different and operates in
separate field. Clause(c) refers to the existing roads which are to
be extended, altered or improved, whereas Clause (e) uses the
expression "allotment of land for roads". Both the expressions
used in the respective clauses are distinct. In the present case,
the road is already in existence and the respondent authority
intends to extend/alter it and hence, indubitably, the same will
fall under Clause (c) to sub-section (3) to Section 40 of the Act.
Thus, the reliance placed by the petitioners on Section 40(3)(e) of
the Act is misconceived.
(17) Section 48A of the Act provides that where a private scheme
has been sanctioned by the State Government under sub-section
(2) of Section 48 of the Act all lands required by the appropriate
authority for the purposes specified in clauses (c), (f), (g), or (h)
of sub-section (3) of Section 40 of the Act shall vest absolutely in
the appropriate authority free from all encumbrances. Sub-section
(3) of Section 48A of the Act stipulates that the provisions of
Sections 68 and 69 of the Act shall mutatis mutandis apply to
the 'sanctioned draft scheme', as if sanctioned draft scheme were
a 'preliminary scheme'. The provision of clause (i) to sub-section
(3) to Section 48 of the Act attracts the provisions of Sections 68
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and 69 of the Act and the same will apply to the 'sanctioned
draft scheme' as if it is a 'preliminary scheme.' The
consequential effect would be that once the provisions of Sections
68 and 69 of the Act are triggered, the power of appropriate
authority to evict summarily any of the occupiers, who continue
to occupy any land, can be ordered by the authorities. Section
69 of the Act provides power to enforce scheme, which also
prescribes the action of removing, pulling or alter any building
or other work in the area under the scheme. Thus, if all the
provisions of the sections mentioned hereinabove are
harmoniously read, the same will explicate that the lay-out of
new streets or roads, construction, diversion, extension,
alteration, improvement etc., as provided in Section 40(3)(c) of
the Act are to be read into the provision of Section 48A of the
Act such road/street gets vested absolutely with the appropriate
authority, which ultimately results in the invocation of provisions
of Sections 68 and 69 of the Act by treating the sanctioned 'draft
scheme' as a 'preliminary scheme'.
(18) Thus, the petitioners cannot resist the implementation of the
construction or extension, alteration of the road, which is passing
through Chhara Nagar as per the Town Planning Scheme
No.96/B.
(19) I may with profit refer to the observations made by the
Division Bench in the order dated 09.04.2018 passed in Letters
Patent Appeal No.401 of 2018, while examining the aforesaid
provision, has held thus:-
"14. In view of the above, the contention of the learned
advocate for the petitioners that at the stage of draft scheme,
notice for eviction cannot be issued to the petitioners is
misconceived. It is further required to be noted that respondent
Corporation has followed the principles of natural justice and
reasonable opportunity of being heard is given to the petitioners.
Thus, there is a substantial compliance of the provisions of the
Act and the Rules."
(20) In the order dated 18.07.2018 passed in Special Civil
Application No.15298 of 2017, the Coordinate Bench of this
Court, while examining the similar provisions, has held thus:-
"11. In view of the above, there remains no shadow of doubt
that where the draft scheme has been sanctioned by the
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Government, the lands required for the purposes specified in the
clauses (c), (f), (g) or (h) of Section 40(3) would automatically
vest in the appropriate authority as per Section 48(A) and that
the person, who is not entitled to occupy the land under the
sanctioned draft scheme can be summarily evicted under section
48-A(3) of the said Act, on the analogy of the provisions
contained in section 68 of the Act read with Rule 33 of the
Rules. When the Statutory vesting takes place as contemplated in
Section 48-A(1) of the said Act, the petitioners could not insist
that they should be simultaneously handed over possession of the
final plots proposed to be allotted to them under the Draft
Scheme, before they are evicted from the subject lands. The
purposes mentioned in Clauses (c), (f), (g) and (h) of Section
40(3) are the public utility services, and therefore the statutory
vesting under Section 48A(1) of the lands earmarked for such
purposes is automatic. It is axiomatic that salus populi suprema
lex that regard be had to be public welfare, is the highest law.
The respondent authorities have sought to exercise their powers
under section 48-A(3) read with section 68 and Rule 33 after
following due process of law and after giving reasonable
opportunity of hearing to the all concerned including the
petitioners. Hence, it could not be said that the respondent no.2-
Corporation has acted arbitrarily or without any authority of law
while issuing impugned notices and issuing passing the impugned
orders."
(21) The Coordinate Bench of this Court in the case of Sukeshi
Vijaybhai Bhatt vs. State of Gujarat, AIR 2021 CC 2741, after
survey of various decisions of Apex Court and this Court, has
held thus:
"30 It also emerges from the record that the State Government
sanctioned the varied Draft TP scheme by notification dated
31.3.1975 published in the gazette on 10.4.1975. Thus the varied
Draft TP Scheme was sanctioned prior to coming into force of
the Act, 1976. In such circumstances, the contention raised on
behalf of the petitioners that there is a deduction of more than
50% of the land is not tenable, as such land was reserved for
public purpose for post and telegraph department and slum
clearance housing at the relevant time. It is well settled legal
position and it is a trite law with regard to the legality and
effect of sanctioned Town Planning Scheme under the Bombay
Town Planning Act as well as Gujarat Town Planning Act and
this Court as well as Supreme Court has time and again held that
once the Draft Scheme is sanctioned by the State Government it
partakes the character of statute. Following decisions of this
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Court as well as Supreme Court are referred to for such settled
legal position :
1) This Court in case of Kanjibhai Dahyabhai Malsattar v. State
of Gujarat (supra) held that TP Scheme would become final
under section 65 read with section 67 of the Act, 1976 and once
the Scheme has become final, all the lands would vest in Area
Development Authority free from all encumbrances and as such,
the petitioners are required to vacate the land.
2) In case of Babulal Badriprasad Varma v. Surat Municipal
Corporation (supra), the Apex Court held that, in facts of the
said case, the appellant through his conduct has waived his right
to equitable remedy as it would operate as estoppel against him
with respect to asserting a right over a portion of the acquired
land in a situation where the Scheme in question has attained
finality as a result of the appellant's inaction.
3) This Court in case of Jiviben Hansrajbhai Patel Wd/o
Hansrajbhai Devjibhai Patel v. State of Gujarat through Secretary
(supra) held that once Final Plot is reserved for public purpose,
the contention of the petitioner in the said case for allotment of
lesser area of Final Plot was rejected on the ground that the
Scheme has attained finality and the matter to be considered
only with respect to enforcement of the Scheme.
4) In case of Satyadev Parasnath Pandey v. State of Gujarat
(supra), this Court held that provisions of section 48A of the Act,
1976 clinches the issue that the land in question would vest in
the authority after the draft scheme has been approved by the
State Government. It was held that doctrine of proportionality
requires that the balance has to be stuck between the individual
claim and the right of the society and accordingly when the land
is reserved for public purpose, the petitioner cannot claim any
compensation from the respondent authority.
5) In case of Ramanbhai Hargovinddas Limbachia v. State of
Gujarat (supra), it was held by this Court that the petitioners
have no locus to raise the objection to purchase the land after
sanctioning of the Town Planning Scheme. Admittedly, in facts of
the case, father of the petitioners purchased the land after the
sanctioning of the Town Planning Scheme in the year 1975."
(22) It is no more res integra that once the draft T.P Scheme has
become part of the Act, the same cannot be questioned, since it
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partakes the character of statute. Thus, the petitioners cannot in
any manner stall implementation of the draft scheme, which
finds the operation of forming part of the T.P. road in view of
the aforesaid provision of law since it is axiomatic that salus
populi suprema lex i.e the public welfare is the highest law. The
respondents are well within their right and power to order the
evocation once it is found that the properties of the petitioners
will trammel the implementation of the T.P.Scheme. The writ
petition fails legal scrutiny and hence, the same is dismissed.
However, as per the statement made in the affidavit-in-reply,
more particularly in paragraph no.6, the respondent-Corporation
shall provide an alternative accommodation as per the prevailing
policy if the case of the concerned owners and occupiers
including the petitioners falls within the criteria of such policy.
Rule discharged. No orders as to costs."
ANALYSIS:
14. Considering the rival submissions advanced by the
learned advocates appearing for the respective parties, provisions
of law and position of law as referred above, following emerge:
14.1. The petitioners herein by way of the present petition
seek to challenge the draft Town Planning Scheme No. 45-B
(Chandlodiya) sanctioned by the respondent - State Government
by virtue of Section 41(1) of the TP Act on 06.06.2017.
14.2. The intention of the TP Scheme was made on
29.09.2015 and the same was published in daily newspaper on
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10.10.2015.
14.3. The appropriate authority under the TP Act i.e. the
respondent no.2 for the purpose of Town Planning Scheme has
taken the following steps as required under the TP Act, which
reads thus:
DATE PARTICULARS
14.07.2015 AMC- Appropriate Authority made consultation
with the Chief Town Planner, to make a scheme in
respect of Chandlodiya Area, as per Section 41(1)
of the TP Act.
29.09.2015 AMC- Appropriate Authority in line with the
consultation with the Chief Town Planner declared
its intention to make a Draft Town Planning
Scheme in respect of Chandlodiya Area as per
Section 41(1) of the TP Act.
09.10.2015 AMC published the declaration of intention to
make the Draft Town Planning Scheme in respect
of Chandlodiya Area, as per Section 41(2) of the
TP Act.
10.10.2015 Publication was made in newspapers Western
Times and Divya Bhaskar about the declaration of
intention to prepare the Draft Town Planing
Scheme in respect to Chandlodiya Area as per
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Section 41(2) of the TP Act.
19.05.2016 The owners' meeting was held as per Rule 17 of
the Gujarat Town Planning and Urban
Development Rules, 1979.
23.05.2016 The Chairman / Secretary of Raykanagar Society
filed objections with the Approprate Authority /
AMC to the tentative proposition with regard to
the TP scheme.
24.06.2016 The Draft Scheme was published in the official
Gazette in respect of Chandlodiya Area, as per
Section 42(1) of the TP Act.
25.06.2016 The Draft TP Scheme was advertised in newspaper
Sandesh and Newsline. The Draft TP Scheme along
with the regulations were also made available for
public inspection at appropriate public places as
per Rule 18 of the TP Rules, 1979. The objections
were also invited from the affected persons as per
the aforesaid Rule. (At Annexure - N - Pg
No.186)
27.06.2016 One Mr. Maganbhai Pitambarbhai Dalvadi on
behalf of Raykanagar Co. Housing Society Ltd filed
objections to the proposed Draft TP Scheme, with
the AMC- Appropriate Authority.
20.09.2016 After considering the objections received from
people alleged to have been affected, the AMC
submitted the Draft scheme with appropriate
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modifications together with the objections which
were communicated to AMC, to the State
Government for its Sanction as per Section 48(1) of
the TP Act. A copy of the relevant extract of the
chart prepared by the Respondent AMC -
Appropriate Authority communicating its remarks
to the objections of the petitioners and submitted
to the State Government as per Section 48(1) of
the TP Act.
06.06.2017 The Draft Scheme (Draft TP Scheme No.45 - B
(Chandlodiya) Area approved by the State
Government u/s 48(2) of the TP Act by resolution
number GH/V/118 of 2017/TPS-112016-4256-L.
14.4. It is pertinent to note that the objections of the
petitioners were considered before the draft Town Planning
Scheme came to be sanctioned, which is undisputed.
14.5. The erstwhile owner of the respondent no.4 instituted
the Suit being Regular Civil Suit No. 771 of 1996 before the City
Civil Court, Ahmedabad (Rural) seeking easmentary rights, which
came to be dismissed by judgment / order and decree dated
29.06.2019, copy of judgment and decree is duly produced at
pg.125-169. The said Suit was dismissed, whereby, in the said
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Suit, the prayers prayed for by the erstwhile owner of the
respondent no.4 seeking easmentary rights came to be declined /
rejected. The respondent no.4 purchased the property in question
by registered sale deed, which came to be executed with respect
to the original Survey No. 93/2 (FP No.34) on 21.09.2020.
14.6. The respondent no.2 issued Notice under Section 68
of the T.P. Act r/.w. Rule-33 of the Rules, on 02.02.2021 (Pg.
193-199), to implement the said scheme, to which the petitioners
filed their objections reiterating the contentions that the scheme
in question was an executive order or an administrative order,
the same being against the judicial pronouncement in Regular
Civil Suit No. 771 of 1996. The said Notice under Section 68 of
the Act r/w. Rule-33 of the Rules, came to be issued by the
respondent no.2 - AMC seeking implementation of the draft
Town Planning Scheme, which has been sanctioned on
06.06.2017 and in view thereof, proceeded to pass an order
dated 29.04.2021, operative part of the said order reads thus:
"ORDER"
"The Ahmedabad Municipal Corporation is in requirement of
the land of Original Plot No.21 allotted and included in sanctioned draft
Town Planning Scheme No.45/B (Chandlodia) for the purposes specified
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in Clause (c), (f), (g) and (h) of Sub-Section-3 of Section-40 of the Act
and for the same, issuing notice under Section-48(a) of the Act, it was
instructed to hand over the land after removing the super-structure
standing thereon to the Ahmedabad Municipal Corporation within 7
(seven) days. Written objection / representation-in-person submitted by
you against the said notice is not tenable as the same does not fall
within the jurisdiction of this office. Moreover, your another
representation also not appears to be techno-legal and hence, it is not
tenable. Therefore, as the T.P. Road attached to the Original Plot No.21
is required to be opened immediately in the public interest, I order that
removing the super-structure standing on the land included in the T.P.
Road within 7 (seven) days, the owner/occupier of Original Plot No.21 of
Sanctioned Draft Town Planning Scheme No.45/B (Chandlodia) vide
Resolution No.GH/V/118 of 2017 / TPS-112017-4256-L dated 06/06/2017
of the State Government shall hand over the same to the Ahmedabad
Municipal Corporation. If the land owner/occupier fails to do so, the
Ahmedabad Municipal Corporation shall take possession of the land under
deduction as per aforesaid scheme and the entire cost thereof shall be
borne by the land owner / occupier. This shall not affect the right of the
ownership in the land of original plot." To create hurdle or interruption
against such action is shall attract the complaint under Section-188 of the
IPC.
Sd/-(Illegible)
Assistant Town Development Officer
(North-West Zone)"
14.7. The draft Town Planning Scheme having sanctioned
under Section 48(2) of the TP Act on 06.06.2017, the present
petition is filed on 31.05.2021, after issuance of eviction notice
under Section 68 of the T.P. Act r/w. Rule-33 of the Rules, by
the respondent no.2 on 02.02.2021. In view of the draft T.P.
scheme sanctioned, under Sections 40(c), (f), (g) and (h) of the
T.P. Act as referred above, are attracted.
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14.8. In view of the aforesaid, provisions of Sections 68
and 69 of the TP Act apply 'mutatis-mutandis' to the sanctioned
draft T.P. scheme, as if the sanctioned scheme were a
preliminary scheme. Consequently, once the provisions of Sections
68 and 69 of the T.P. Act come into force, the powers of
competent authority to evict summarily any of the occupiers, in
occupation of the land in question, can be ordered by the
competent authority. Section 69 of the T.P. Act provides the
powers to enforce the scheme, which includes the action of
removing, pulling down or altering any building or other work in
the area under the Scheme.
14.9. The submissions were advanced by Ms. Jani, learned
advocate that aforesaid would fall under Clause-(e) of Section 40
of the T.P. Act. Section 40 (e) in the opinion of this Court, is the
subjective interpretation of the petitioners. The land in question
is reserved for the public purpose and for laying down the new
street. The aforesaid contention was also considered by the
competent authority, while passing the order dated 29.04.2021,
whereby, the reasons are assigned, which reads thus:
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".....With respect to the aforesaid fact, it is to be stated that,
after inclusion of Revenue Survey No.80 of moje Chandlodiya,
included in T.P. Scheme No.45/B (Chandlodiya) as per the
revenue record, in the sanctioned draft town planning scheme
No.45/B (Chandlodiya), notices under Section-68 of the Act and
Rule-33 thereunder have been served on 03/02/2021 to the
affected owners and occupants to hand over the actual and
vacant possession of the land of the Original Plot No.21 assigned
to it merging with the road, subject to the provisions of Section
48/A of the Gujarat Town Planning and Urban Development Act.
With respect to your above submission regarding the
notice issued to you, it is to be stated that, the T.P. Scheme
No.45/B (Chandlodiya) has been given draft sanction vide the
aforesaid notification by the Government. The notices issued
under the said town planning scheme are lawful and fall within
the jurisdiction of this department. Therefore, the submission
made by the affected persons/occupants is not acceptable.
Further, after the sanction of the draft as per the Gujarat Town
Planning and Urban Development Act, 1976, the provisions under
the Act are as given below.
As per Section - 40 (3)(a) of "the Gujarat Town Planning
Act - 1976", "the laying out of land, either vacant or already
built upon." Further, as per Section - 40 (3)(c), "lay-out of new
streets or roads, construction, diversion, extension, alteration,
improvement and closing up of streets and roads and
discontinuance of communications."
Thus, as the draft of the scheme has been sanctioned by
the State Government under sub-section (2) of Section 48 of the
"Gujarat Town Planning and Urban Development Act, 1976", all
the lands required by the appropriate authority shall be
completely vested to the appropriate authority free from all
encumbrances for the purposes specified in clauses (c), (f), (g)
and (h) of Sub-section (3) of Section-40.
The matter as to for which subjects provisions may be
made has been covered in the provisions of sub-section (3) of
Section - 40.
Provisions of clauses (c), (f), (g) and (h) of Sub-section (3)
of Section-40 are as given below.
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(c) lay-out of new streets or roads, construction, diversion,
extension, alteration, improvement and closing up of streets and
roads and discontinuance of communications.
(f) Making arrangement for drainage, inclusive of sewerage,
surface or sub-soil drainage and sewage disposal.
(g) Making arrangement for lighting.
(h) Water supply.
After due consideration on all the aspects, the State
Government has sanctioned the Town Planning Scheme No.45/B
(Chandlodiya) as the draft town planning scheme vide Resolution
No.GH/V/118 of 2017/TPS-112016-4256-L, Dtd.06/06/2017. In this
regard, it is necessary in public interest to implement the said
town planning scheme sanctioned under the provisions of " The
Gujarat Town Planning and Urban Development Act - 1976" and
as a part of it, the aforesaid notice has been issued to vacate the
T.P. road. The said issued notices are fair, lawful and as per the
provisions of the Act.
The land of Original Plot No.21 allotted and included in
sanctioned draft Town Planning Scheme No.45/B (Chandlodia) is
required for the purposes specified in Clause (c), (f), (g) and (h)
of Sub-Section-3 of Section-40 of the Act. The owner/occupier
shall have to hand over the land deducted in T.P. Road after
removing the super-structure standing thereon to the Ahmedabad
Municipal Corporation within 7 (seven) days.
In sub-section (2) of section 48, it is provided that no
right of the owner shall be affected by vesting of all lands
required by the appropriate authority for the purposes specified
in clauses (c), (f), (g) or (h) of Sub-section (3) of Section-40 in
the appropriate authority free from all encumbrances."
14.10. Considering the aforesaid, the competent
authority being expert body has sanctioned the scheme under
Section 40(3) (c), (f), (g) and (h) of the Town Planning Act, after
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due consideration, wherein, Section 40(3)(c) provides to 'lay-out
of new streets or roads, construction, diversion, extension,
alteration, improvement and closing up of streets and roads and
discontinuance of communications'.
14.11. The aforesaid is fortified in the ratio as laid
down in the case of Uttar Pradesh Public Service Commission,
through its Chairman and Another v/s. Rahul Singh and Another
reported in (2018) 7 SCC 254, relevant Paras-14 and 15 read
thus:
"14. In the present case we find that all the 3 questions needed
a long process of reasoning and the High Court itself has noticed
that the stand of the Commission is also supported by certain
text books. When there are conflicting views, then the court must
bow down to the opinion of the experts. Judges are not and
cannot be experts in all fields and, therefore, they must exercise
great restraint and should not overstep their jurisdiction to upset
the opinion of the experts.
15. In view of the above discussion we are clearly of the view
that the High Court over stepped its jurisdiction by giving the
directions which amounted to setting aside the decision of
experts in the field. As far as the objection of the appellant -
Rahul Singh is concerned, after going through the question on
which he raised an objection, we ourselves are of the prima facie
view that the answer given by the Commission is correct."
14.12. The draft Town Planning Scheme came to be
sanctioned as back as on 06.06.2017 before the respondent no.4
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purchased the property by registered sale deed. Ms. Jani, learned
advocate placed reliance on the GDCR, 2017, duly produced at
Pg.435, which came into effect after sanctioning of the draft T.P.
Scheme No. 45-B (Chandlodiya) as back as on 06.06.2017. If the
aforesaid objections were taken by the petitioners before the
competent authority, the same would have been considered by
the competent authority. The ownership rights of the petitioners
would not in anyway be affected by issuance of the impugned
notices, considering the fact that reliance is placed by Ms. Jani,
learned advocate appearing for the petitioners on paying the
property tax, having electricity connection, and paid the impact
fees for regulation of their constructions.
14.13. In the opinion of this Court, if the petitioners
herein are aggrieved by any action and /or inaction on the part
of the private respondents, it is always open for the petitioners
to take appropriate steps against the private respondents in
accordance with law. However, in the opinion of this Court, the
draft T.P. Scheme in question is laid down by the competent
authority, after following due provisions of law, considering the
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objections of the petitioners and in public interest. The
respondent no.2 was not a party to the said litigation, i.e.
Regular Civil Suit No. 771 of 1996, which is with respect to the
easmentary rights between the private parties and the same being
not binding to the respondent no.2 herein or the State
authorities. It is stated that for approach to FP No. 70 which is
reserved for public purpose, there is no other approach road. The
respondent no.2 has explained in the affidavit in reply that FP
No. 70 which is adjacent to Survey No. 80 (now allotted FP no.
21/1 and 21/2) of the petitioners have been reserved for public
purpose. For access to FP No. 70, the only access available is
through 7.5 mtrs T.P. Road passing through Survey No.80 (now
FP no. 21/1 and 21/2). The FP No. 70 which is reserved for
public purpose may be developed for any appropriate public
purpose, as referred to in the said affidavit filed by the
respondent no.2. There is no other accessible road to access FP
No. 70, reserved for public purpose as also original Survey No.
93/2 (FP No.34), which belongs to the respondent no.4.
15. For the foregoing reasons, no interference is called
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for, to invoke the extraordinary jurisdiction under Article-226 of
the Constitution of India and accordingly, the present Petition
stands dismissed. Rule is discharged.
16. Interim relief granted vide order dated 23.06.2021
stands vacated.
17. Since the main petition is dismissed, Civil
Applications, pending, if any, also stands disposed of,
accordingly.
(VAIBHAVI D. NANAVATI,J)
FURTHER ORDER:
After pronouncement of judgment, Ms. Megha Jani, learned
advocate appearing for the petitioners pray to stay the present
order for a period of six weeks. Mr. Nandish Y. Chudgar, learned
advocate appearing for the respondent nos.2 and 3 and Mr.
Shalin Mehta, learned senior counsel assisted by Mr. Mrugesh A.
Barot, learned advocate appearing for the respondent no.4 raised
objection to the aforesaid request.
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In the interest of justice, the interim order granted vide
order dated 23.06.2021 be continued for a further period of four
weeks from today.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
