Gujarat High Court

Sanskrut Buildcon Limited Liability ... vs State Of Gujarat on 16 April, 2025

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                               C/SCA/4820/2024                                     ORDER DATED: 16/04/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 4820 of 2024

                                                           With
                                  CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
                                     In R/SPECIAL CIVIL APPLICATION NO. 4820 of 2024
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                                    SANSKRUT BUILDCON LIMITED LIABILITY PARTNERSHIP
                                                         Versus
                                               STATE OF GUJARAT & ORS.
                        ==========================================================
                        Appearance:
                        MR HRIDAY BUCH (2372) for the Petitioner(s) No. 1
                        MS ROSHNI PATEL, AGP for the Respondent(s) No. 1
                        MR NANDISH Y CHUDGAR(2011) for the Respondent(s) No. 2,3,4
                        ==========================================================

                             CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                                          Date : 16/04/2025

                                                              ORAL ORDER

1. This petition is filed seeking to direct respondents to implement the Town Planning Scheme No. 23 - Sabarmati and to open 24.38 meters (100ft.) road on the eastern side of Final Plot No. 617.

2. Heard learned advocate Mr. Hriday Buch for the petitioner and learned Assistant Government Pleader Ms. Roshni Patel for respondent No. 1 and learned advocate Mr. Nandish Chudgar for respondent Nos. 2 to 4.

3. Learned advocate Mr. Hriday Buch for the petitioner submitted that the petitioner-a limited liability partnership, has filed this petition through its partner. It is case of the

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petitioner that on account of inaction on part of the Corporation to implement the Town Planning Scheme No. 23 - Sabarmati, for development of 24.38 meters (100ft.) public road, this petition is filed.

3.1 Referring to facts, learned advocate Mr. Hriday Buch for the petitioner submitted that the petitioner is owner of land bearing Survey No. 10/A, Final Plot No. 617 in Town Planning Scheme No. 23 - Sabarmati. The petitioner constructed a commercial property known as 'Prushti Sparsh Arcade' on the said plot after due permission from the Corporation. The construction done was in accordance with the Rules and Regulations and as per the permission granted by respondent Corporation. The Building Use permission was also given in the year 2023.

3.2 Learned advocate for the petitioner further submitted that though commercial complex was constructed by the petitioner being owner of the land abutting to 24.38 meters (100ft.) road on Final Plot No. 617, the members of the complex are unable to get the benefit of the said public road, since the same has not been developed by respondent- corporation though being implementing authority. In this case, the intention for Town Planning Scheme No. 23 - Sabarmati, was declared on 20.09.1963. Thereafter, vide notification dated 12.12.1980, the said Scheme No. 23 - Sabarmati was sanctioned by the State Government under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (for short 'the TP Act'). Thus, upon notification dated 12.12.1980, the scheme has become part of the Act. Thereafter, certain variations took

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place and the Scheme is finalized in the year 2000. Thus, finalization of T.P.Scheme No.23 is not in dispute. Despite that since the T.P.Scheme No.23, is yet not implemented by the respondent Corporation being the implementing authority, it may be directed to implement the scheme.

3.3 Moreover, the very Town Planning Scheme was considered by this Court in Special Civil Application No. 7201 of 2010, wherein the petitioner therein had prayed for implementation of Town Planning Scheme in respect to Final Plot Nos. 617, 450 and 464. It was case of the petitioners in SCA No. 7201 of 2020, that despite sanctioning of Draft Town Planning Scheme No. 23- Sabarmati; the petitioners were not handed over vacant possession of their final plot in lieu of their original plot. This Court by decision dated 24.02.2011, had allowed Special Civil Application No. 7201 of 2010 with certain directions. In the order dated 24.02.2011; respondent corporation was directed to hand over the peaceful vacant possession of Final Plot No. 464 admeasuring 206 sq. meters to the respective petitioners.

3.4 Thereafter, writ petition in the nature of Public Interest Litigation was filed registered as R/WP (PIL) No. 27 of 2020 by residents of Sabarmati area seeking variation of scheme qua Final Plot No. 612 and 613. This Court after due consideration was pleased to dismiss the petition vide judgment dated 05.04.2023. It is observed in the judgment dated 05.04.2023 in R/WP (PIL) No. 27 of 2020, that in the larger interest of public of the area for lying down of the road the scheme is required to be implemented. Despite that no action is taken by

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the Corporation and therefore appropriate direction may be issued to the Corporation to implement the scheme.

4. Learned advocate Mr. Nandish Chudgar for respondent - Corporation by placing reliance on the affidavit filed submitted that it is true that Final Town Planning Scheme No. 23 - Sabarmati was sanctioned by the State Government under Section 65 of the TP Act vide notification dated 12.12.1980. Thereafter, the procedure was followed by issuance of notice under Section 68 r/w Rule 33 of the TP Act for the purpose of implementation of the Scheme. The said notices were issued on 18.04.2022. For the purpose of construction of road as prayed for; the Corporation needs possession of land bearing Survey No. 5/B and OP No. 264 which belongs to the State Government and used by the local community as Graveyard. Therefore, for the possession of the land bearing OP No. 264, appropriate communication has been made to Government to handover peaceful vacant possession of land in question.

4.1 Learned advocate for respondent - Corporation further relied upon the communication made to Mamlatdar dated 01.05.2023 (Annexure-R3, Page No. 78) and the Police protection sought for taking possession of the subject land. Learned advocate submitted that as directed in R/WP (PIL) No. 27 of 2020, the scheme is required to be implemented by taking possession of the subject land for development of road and therefore efforts in that regard have been made. There is no inaction on the part of respondent - Corporation as alleged. However, the local persons of that area are not permitting the authorities of Corporation to take the possession and therefore,

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appropriate directions to the Government may be issued to handover peaceful vacant possession of the land in question which belongs to the Government.

5. Learned Assistant Government Pleader Ms. Roshni Patel for respondent No. 1 submitted that the Corporation being implementing authority is required to do the needful for taking possession of the subject land. For Police protection, the Corporation can make an application and the same will be considered in accordance with law.

6. Learned advocate Mr. N. V. Gandhi submitted that since the applicants of Civil Application No. 1 of 2024 (for joining party) are affected by implementation of the Town Planning Scheme No. 23 - Sabarmati, they have filed an application seeking to join them as party respondents. Therefore, this application may be allowed, permitting to join them as party respondents. Learned advocate submitted that on account of implementation of Town Planning Scheme No. 23 - Sabarmati and for development of 24.38 meters (100ft) road on the eastern side of Final Plot No. 617, the proposed respondents are getting affected. However, learned advocate Mr. Gandhi, could not dispute that in R/WP (PIL) No. 27 of 2020, an order was passed for implementation of scheme taking note of the fact that the scheme is required to be implemented keeping in mind the interest of public at large. The applicants were party to the WP (PIL) No.27 of 2020, and aware of the said decision. Learned advocate also could not dispute that the similar type of land with larger area for the graveyard is allotted to the affected persons on the land at Survey No. 612. The land at

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Survey No. 612 is earmarked for graveyard. This aspect has been considered in the order dated 05.04.2023 in R/WP (PIL) No. 27 of 2020. Therefore, in the opinion of this Court application filed by private persons, seeking to join them as party respondents, is not required to be considered at this stage and therefore, the same is rejected.

7. Considered the submissions and the documents on record. The issue in this petition is in relation to implementation of the Town Planning Scheme No. 23 - Sabarmati, sanctioned by the State Government under Section 65 of the TP Act vide notification dated 22.11.1983. It is also not in dispute that thereafter, procedure has been initiated by issuance of notices to the concerned persons for eviction of their properties for the purpose of implementation of the scheme. Challenging the implementation of the scheme, R/WP (PIL) No. 27 of 2020 was filed, wherein this Court held as under: -

"6. It is an undisputed fact that after following process of law, the scheme had been finalised way back in the year 1983. It is also an undisputed fact that when the procedure enumerated under the said Act and the Rules were undertaken by the authorities, no objections or grievances were raised by any of the persons. It is also an undisputed fact that the area of graveyard which is going to be used for road is 1726 square meters, whereas, out of 4046 square meters, remaining part would be granted to electricity company, whereas possession of 473 square meters is to be handed over to the petitioners of Special Civil Application No.7201 of 2010 as per the judgment passed by this Court on 24.2.2011.

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Against total area of 4046 square meters, under the town planning scheme, the area earmarked for graveyard is 4818 square meters which is much larger than as the land which is sought to be used for laying down the road. It is an undisputed fact that the scheme has been sanctioned and has become part of the Act.

7. We have also gone through the map produced by the corporation. While laying down the straight road, the land which was used by the petitioners for graveyard, the road is passing through the same and against which the area which is given on another land and, therefore, the same can be used by burying the children below the age of 10 years. We do have sympathy for the sentiments of the community of the petitioners. However, the scheme which is for the interest of public at large and for laying down the road and particularly when more area has been granted for the purpose of graveyard, we are of the opinion that similar type of land of a larger area for a graveyard is allotted, the petitioners can also use the land for the graveyard as they desire on the land at Survey No.612 which is earmarked for graveyard. Hence, we do not find any substance in the writ petition and is hereby dismissed. Notice discharged."

8. Therefore, the implementation of the scheme to be completed by Corporation being implementing authority is not in dispute. The difficulty on the part of the Corporation is that, since the land was used by local people for Graveyard, the Corporation is not successful in taking peaceful vacant possession of the said land despite efforts made. A communication dated 01.05.2023 to Mamlatdar supports the

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case of Corporation that efforts have been made to implement the scheme. The Police protection sought is also on record at Annexure-R4 (Page No. 79), however it cannot be ignored that till date the scheme is not implemented. From the map annexed along with the reply filed by the Corporation it is noticed that against the Original Plot No. 264 which was referred as 'Burial Ground', Plot No. 612 has been allotted as a 'Burial Ground''. This aspect has been recorded in the judgment dated 05.04.2023 in R/WP (PIL) No. 27 of 2020. Therefore, the grievance of the local people that they are adversely affected by the implementation of the Scheme would not survive because they have been given land at alternative location to be used as burial ground. Admittedly the subject land belongs to the Government.

9. In view of above, the Corporation being implementing authority is required to take appropriate steps to implement the scheme in its entirety as expeditiously as possible, therefore, following directions are issued: -

9.1 The Corporation shall make an appropriate application before the Police Authority for providing Police Assistance for getting peaceful vacant possession of the land in question (Original Plot No. 264).

9.2 Since, the private respondents were represented through Learned Advocate Mr. N.V Gandhi, they are expected to cooperate.

9.3. The Government is also directed to assist the respondent

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Corporation, for getting peaceful vacant possession of the subject land for the purpose of implementation of the scheme, which is in larger interest of public.