Gujarat High Court
Bhavna Members Assoc vs State Of Gujarat on 3 January, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/11571/1994 ORDER DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11571 of 1994
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 11571 of 1994
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BHAVNA MEMBERS ASSOC & 5 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1,2,3,4,5,6
MR. KAMAL TRIVEDI, ADVOCATE GENERAL ASSISTED BY MR. VINAY
VISHEN, AGP for the Respondent(s) No. 1
M/S PATEL ADVOCATES(1762) for the Respondent(s) No. 1
MR HIMANSHU K PATEL(3183) for the Respondent(s) No. 2
MR PRASHANT G DESAI(291), SENIOR ADVOCATE ASSISTED BY MR.
HIMANSHU PATEL for the Respondent(s) No. 3,4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 03/01/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. The present petition has been filed with the following
reliefs : -
"(A) Your Lordships may be pleased to declare Section 71 of
the Gujarat Town Planning and Urban Development Act, 1976
as ultra vires under Article 14, 19 and 300A of the
Constitution of India,
(B) Your Lordships may be pleased to issue a writ of
NEUTRAL CITATION
C/SCA/11571/1994 ORDER DATED: 03/01/2024
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certiorari and/or any other appropriate writ, direction or
order quashing and setting aside the impugned decision of
the respondent no. 3 - Annexure D to the petition dated
29.04.92 by which the respondent no.3 has given her approval
to the variation of the Town Planning Scheme no.20 varied
and put the land of the petitioners under reservation of slum
upgradation scheme,
(c) Your Lordships may be pleased to issue a writ of
mandamus and/or any other appropriate writ, direction or
order, directing the respondents to act according to law and
directing them not to reserve the land of the petitioners for
alleged reservation of slum upgradation and they may be
directed to allow the petitioners to hold the said land F.P. No.
286 part as per original scheme which is already finalised
without any reservation,
(D) Your Lordships may be pleased to issue a writ of
mandamus and/or a writ of prohibition and/or any other
appropriate writ, direction or order prohibiting respondents
from putting the land of the petitioners bearing Final Plot No.
286 part under reservation under Town Planning Scheme No.
20 varied for the alleged public purpose of slum upgradation
and they may be permanently restrained from depriving the
petitioners from use and occupation of the land as per rights
described in the original Town Planning scheme no. 20 Gulbai
Tekra for the alleged public purpose of slum upgradation and
they may be permanently restrained from putting the land of
the petitioners F.P. No. 286 part for slum upgradation or for
any other public purpose,
(E) Your Lordships may be pleased to hold that price of
Rs.25/- per sq. mt. offered to the petitioners by respondents of
F.P. No. 286 part of Town Planning Scheme No. 20 Gulbai
Tekra is totally illusory and respondents may be restrained by
appropriate writ from acquiring the lands of the petitioners by
offering compensation of Rs.25/- per sq. mt. as per their
notice, in any view of the matter, Respondents may be
directed to pay market value of the land of the petitioners
since land has not been declared as excess land under the
Urban Land (Ceiling and Regulation) Act, 1976,
(F) Your Lordships may be pleased to issue a writ of
mandamus and/or any other appropriate writ, direction or
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C/SCA/11571/1994 ORDER DATED: 03/01/2024
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order directing the respondents to offer to the petitioners
alternative land in the same Town Planning Scheme, if at all,
Your Lordships are inclined to continue with the reservation
of their lands F.P. No. 286 part of Town Planning Scheme
No.20, Gulbai Tekra,
(G) Your Lordships may be pleased to direct the respondents
and/or any relevant respondent by a writ of mandamus or any
other appropriate writ, direction or order to drop the said
lands of F.P. No. 286 part of T.P. Scheme No. 20 from
reservation of slum upgradation,
(H) Pending the hearing and final disposal of this petition,
Your Lordships may be pleased to stay all further proceedings
before respondent no.1 under the exercise of powers u/s. 65
of the Act for sanctioning the proposed variation as per
Annexure-D dated 29/4/1992 proposed by respondent no.3,
and sanction regarding F.P. No. 286 part as per varied
scheme No.3 reserving the said F.P. No. 286 part for slum
upgradation scheme may not be granted,"
2. On the presentation of the writ petition, it seems that the
petitioners herein have got an interim order in view of the
pending challenge to the provision of Section 71 of the
Gujarat Town Planning and Urban Development Act, 1976 in
Special Civil Application Nos. 3360 of 1992 and 1876 of 1988.
3. From the perusal of the order-sheets, it seems that the
matter remained pending for long. It was twice dismissed in
default on 04.12.1995 and 15.09.2006 when it was restored
on the request made by the learned counsel for the
petitioners. Be that as it may, the relief prayed in the writ
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C/SCA/11571/1994 ORDER DATED: 03/01/2024
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petition challenging the vires and validity of the Section 71 of
the Gujarat Town Planning and Urban Development Act, 1976
no more survives, inasmuch as, the writ petition being
Special Civil Application No. 1876 of 1988, which was the
leading writ petition, has been decided by this Court vide
judgment and order dated 30.03.1995 reported in 1995(1)
G.L.H. 1124 titled as Bhupindrakumar Ramanlal and
Others versus State of Gujarat and Others, wherein
Section 71 of the Gujarat Town Planning and Urban
Development Act, 1976 has been upheld. Consequently,
Special Civil Application No. 3360 of 1992 has been disposed
of in the same terms vide judgment and order dated
04.12.1995.
4. Having noted above, we do not find any good ground to
enter into the merits of the instant petition, wherein primary
challenge was to the validity of Section 71 of the Gujarat
Town Planning and Urban Development Act, 1976.
5. We, therefore, dispose of the present petition in the same
terms of the judgment and order dated 30.03.1995 passed in
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Special Civil Application No. 1876 of 1988.
6. We find it appropriate to note that the town planning
scheme-in-question namely Town Planning Scheme No. 20
Gulbai Tekra was sanctioned on 27.05.1966. In the said
scheme, the Revenue Survey No. 116, 157 and 117/1 in Moje
Kochrab held by original tenure-holder were included. Out
of the total area of 38716.87 sq. mtrs., only 5,220 sq. mtrs.
was reserved for slum upgradation. Third variation in the
draft town planning scheme was made and declaration was
published on 29.01.1985 and in the extraordinary gazette on
16.02.1985.
7. We may further record that the petitioners herein had
purchased the area of 5,220 sq. mtrs. of the aforesaid lands
from the original owners in the year 1993, much after the
publication of the third variation in the final gazette on
16.02.1985. It is, thus, left open for the competent authority
to decide the issue, if any, raised by the petitioners
pertaining to the plot-in-question.
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C/SCA/11571/1994 ORDER DATED: 03/01/2024
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8. The liberty is with the petitioners to raise any grievance
with respect to the deductions, compensation or area etc., i.e.
factual dispute pertaining to the plot-in-question purchased
by the petitioners in the year 1993.
9. With the above observations, the present petition stands
dismissed. Pending Civil Application/s, if any, shall also
stands disposed of.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
AMAR SINGH
