Gujarat High Court
M/S. Biyani Construction vs State Of Gujarat on 10 June, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/541/2024 ORDER DATED: 10/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 541 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 7397 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 541 of 2024
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M/S. BIYANI CONSTRUCTION
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KK TRIVEDI(934) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3,4,5
MR KRUTIK PARIKH AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 10/06/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. Heard learned counsel Mr K K Trivedi for the appellant
and perused the record.
2. The appellant herein namely the original petitioner is
aggrieved by the preliminary Town Planning Scheme notified vide
Notification dated 21.10.2022 by the State Government under
Section 65 (3) of the Gujarat Town Planning and Urban
NEUTRAL CITATION
C/LPA/541/2024 ORDER DATED: 10/06/2024
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Development Act, 1976 (in short as the Town Planning Act).
3. The original petitioner herein has been allotted final Plot
No. 86 in the draft Town Planning Scheme, which was sanctioned
by the State Government on 31.07.2007. The total area of final Plot
No. 86 allotted in favour of the petitioner was admeasuring 6890
sq.mts. As per the statement made in the writ petition itself, the
petitioner had transferred the instant part of the final Plot No. 86 for
an area of 3445 sq.mts. (total area 6890 sq.mts.) in favour of the
third party through a registered sale deed. It seems that in the mean
time, the Town Planning Officer was appointed on 17.01.2008.
Individual notices were sent to the land owners, as recorded in the
Judgment impugned dated 17.03.2008, 23.07.2014 and 18.12.2018.
The order passed by the learned Single Judge further records that
even public notices were issued by the Town Planning Officer in the
daily newspapers on 15.06.2008, 13.07.2016 and 29.04.2021. The
Town Planning Officer had also intimated the decision of
preparation of the proposal for preliminary Town Planning Scheme,
before submission to the State Government, vide Communication
dated 13.05.2021 to the individual land owners, the copy whereof
has been brought on record as Form- 'J' marked at Annexure R-4 by
the Respondent.
4. The proposal of preliminary Town Planning Scheme No.
29 (Rundh - Vesu - Magadalla) was submitted to the State
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Government under Sections 52 (2) and 64 of the Town Planning Act
for sanction only on 01.06.2021. Much after the State Government
has sanctioned the preliminary Town Planning Scheme vide
Notification dated 21.10.2022, the petitioner has approached this
Court by way of writ petition filed in the month of April 2023. The
only grievance raised before the Writ Court was that the final Plot
No. 87 to the extent of an area of 674 sq.mts. has been adjusted in
the original Plot No. 86 admeasuring 10600 sq.mts (Survey / Block
No. 391, which belong to the petitioner originally).
5. The contention in the writ petition is that the final Plot
No. 87 was inserted in place of final Plot No. 86, to the extent of an
area of 674 sq.mts., behind the back of the petitioner. However, the
fact remains that there is an admission to the effect that the petitioner
has never objected to the notices issued by the Town Planning
Officer individually to the land owners, as also the public notices
published in the newspapers. There is no denial to the fact that the
decision under Section 52 (1) in Form- 'J' of the Town Planning Act
was communicated to the land owners by the Town Planning Officer
on 13.05.2021.
6. As noted hereinbefore, the proposal of preliminary Town
Planning Scheme was submitted by the Town Planning Officer after
one month of communication to the land owners. At no stage of the
said proceedings, the petitioner has raised any objection before the
Town Planning Officer with regard to the insertion of final Plot No.
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87 area 674 sq.mts, allegedly in final Plot No. 86.
7. The dispute was raised only after the sanction of the
preliminary Town Planning Scheme and it becoming part of the Act
under Section 65 (3) of the Town Planning Act. Moreover, the
person in whose favour final Plot No. 87 area 674 sq.mts. has been
alloted was not been impleaded before the Writ Court.
8. For the aforesaid, we do not find any error in the Order
passed by the learned Single Judge in refusing to invoke the
extraordinary jurisdiction under Article 226 of the Constitution of
India to cast any aspersion on the preparation of the preliminary
Town Planning Scheme notified on 21.10.2022 by the State
Government. However, a liberty is kept open to the petitioners to
approach the competent authority under Section 70 of the Town
Planning Act and an observation has been made to the effect that in
case the petitioner approaches the competent authority, the
application of the petitioner be considered in accordance with the
provisions of the Act.
9. In view of the above, while dismissing the appeal, we keep it
open for the petitioner to approach the competent authority by
invoking the provisions of Section 70 of the Town Planning Act. In
case the petitioners file such an application or representation before
the competent authority, the dismissal of the writ petition or of this
appeal shall not come in their way. In any case, none of the
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observations made by the Writ Court or by us hereinbefore shall
have any bearing on the case of the petitioners in that eventuality.
10. Consequently, the connected civil application also stands
disposed of.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
SAHIL S. RANGER
