Gujarat High Court
Achal Anil Bakeri vs State Of Gujarat on 21 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9564 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
YES
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ACHAL ANIL BAKERI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NANDISH Y CHUDGAR(2011) for the Petitioner(s) No. 1,2,3,4,5
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 21/04/2025
ORAL JUDGMENT
1. Rule. Learned Assistant Government Pleader Mr. Sahil
Trivedi waives service of notice of rule on behalf of respondent
Nos. 1 and 2.
2. This petition is filed challenging the notification dated
25.09.2019 (Annexure-A, Page No. 19) under which respondent
No. 1 had sanctioned the Preliminary Town Planning Scheme
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No. 81 (Sughad - Bhat) earlier known as Town Planning
Scheme No. 82, originally proposed by Ahmedabad Urban
Development Authority (AUDA) in the year 2004. The
challenge is that by way of notification dated 25.09.2019,
respondent had modified the area, boundary and location of
the plots, given earlier to the petitioners in the Draft Town
Planning Scheme. It is further case of the petitioners that on
account of notification dated 25.09.2019, there is substantial
modification with regard to location. Since, no opportunity of
hearing was given to the petitioners prior to substantial
modification by way of notification dated 25.09.2019, this
petition was preferred.
3. Heard learned advocate Mr. Nandish Chudgar for the
petitioners and learned Assistant Government Pleader Mr. Sahil
Trivedi for respondents.
4. Learned advocate Mr. Nandish Chudgar for the petitioners
submitted that the notification dated 25.09.2019 deserves to be
quashed and set aside because there is substantial modification
in the area, boundary and location without providing any
opportunity of hearing to the petitioners and the same being
contrary to the settled legal position, the notification deserves
to be quashed and set aside. By placing reliance on the
documents, learned advocate for the petitioners submitted that
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pursuant to finalization of the Draft Town Planning Scheme
No. 81 (Sughad - Bhat), objections were invited of all the
stakeholders and thereafter Town Planning Officer finalized the
Scheme and sent to the State Authorities for sanction. The
State Government thereafter sanctioned the Draft Town
Planning Scheme on 19.12.2011. As per the Draft Town
Planning Scheme as sanctioned by the State Government under
Section 48 of the Gujarat Town Planning and Urban
Development Act, 1976 (for short 'the TP Act'), Survey No.
167/P, 167/1 and 765/1 were allotted Original Plot No. 12 and
Final Plot Nos. 8, 9, 10, 11 and 12. This aspect has been
evident from the map at Annexure-F, Page No. 31.
4.1 Thereafter, subsequent to the sanctioning of the Draft
Town Planning Scheme by the State Government on
19.12.2011, the Town Planning Officer was appointed in
March, 2012. The Town Planning Officer invited objections and
after following due procedure as contemplated under the
provisions of the TP Act.; on 03.12.2016 submitted the
Preliminary Town Planning Scheme No. 81 (Sughad - Bhat) to
the State Government for its sanction under Section 64 of the
TP Act. In support learned advocate for the petitioners relied
upon the map at Page No. 76. From the map it is evident that
against Final Plot Nos. 8, 10 and 11, which were given against
Original Plot No. 12, the Plots were only slightly shifted on
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right of Final Plot No. 14/1. However, all the Survey Numbers
with its Final Plots were adjoining to each other and entire
land as a part of compact and contiguous land consisting of
various Final Plot Numbers admeasuring 1,43,727 sq. meters
was allotted. This was falling in Town Planning Scheme No. 81
and the petitioners were not having objection/grievance with
regard to the same.
4.2 Learned advocate for the petitioners further submitted
that the Preliminary Town Planning Scheme No. 81 (Sughad -
Bhat) was prepared by the Town Planning Officer under
Section 64 of the TP Act on 03.12.2016 and the same was sent
to the State Government for its sanction. The State
Government, however, ignoring the proposed Town Planning
Scheme by the Town Planning Officer sanctioned the
Preliminary Town Planning Scheme No. 81 (Sughad - Bhat) by
making substantial change. Aggrieved by which, this petition
was filed.
4.3 Learned advocate for the petitioners in support of his
submission that there is substantial change, which has caused
prejudice to the petitioners and this substantial change was
done without putting the petitioners to notice, has relied upon
the map at Annexure-R5, Page No. 33 = Page No. 80 of reply.
Learned advocate further submitted that comparison of the two
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maps at Page No. 31 = Page No. 74 of reply and Page No.33
= Page No. 80 of reply shows that Final Plot Nos. 8, 10 and
11 are shifted to totally new location than located in the Draft
Town Planning Scheme No. 81 (Sughad - Bhat) as also the
proposed Preliminary Town Planning Scheme No. 81 (Sughad -
Bhat) under Section 64 of the TP Act. Learned advocate by
placing reliance under Section 65(1) of the TP Act submitted
that the said Section provides for power of Government to
sanction or refuse to sanction the scheme and the effect of
sanction for the purpose of correcting an error, irregularity or
infirmity. In the present case, this is not a case where the
error is correct or the case does not fall where irregularities
are required to be correct or certain infirmity are required to
be considered. Since, none of the requirement of Section 65 of
the TP Act are complied with, the modification done being
contrary to the provision of Section 65 of the TP Act, deserves
to be quashed and set aside.
4.4 Learned advocate further submitted that the modification
is substantial in nature because the State Government has
shifted Final Plot Nos. 8, 10 and 11 to altogether different
location. Moreover, under Section 65(1) of the TP Act, the
State Government is empowered to make modification only for
the purpose of correcting an error, irregularity or infirmity.
However, in the present case, there is no error, irregularity or
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infirmity empowering the State Government to correct the
error. Further, this is a case where prior to the above referred
substantial modification, the petitioners were not provided with
opportunity of hearing which is contrary to the decision of this
Court in the case of Kishanbhai Hargovandas Patel & Anr. v.s
State of Gujarat and Ors reported in 2010 (4) GLR 2867. As
referred in the said decision, Section 65(1) of the TP Act
expressly provide for giving a hearing to the person affected by
the modification that may be made by the State Government in
the Preliminary Town Planning Scheme. The principles of
natural justice are to be read into the provision and therefore
the State Government is bound to give opportunity of hearing
to the person affected before making any modification. Learned
advocate submitted that his aspect has been once again
considered with a similar view in the matter between Laxmi
Gold Orna House Limited & Ors. vs State of Gujarat & Ors.
decided by this Court on 06.03.2025 in Special Civil
Application No. 19717 of 2023.
4.5 Reliance is also placed on the decision of Rajasthan High
Court in D. B. Civil Writ Petition No. 17047 of 2022 decided
on 11.07.2024 in the case of Jubair Bhati v.s. Rajasthan High
Court and Ors. ; on the ground that finding time to hear and
adjudicate the pending cases may happen on account of
various reasons that would not preclude the petitioner to
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consider his case when the grievance has been timely raised.
In this case also, immediately upon the Preliminary Town
Planning Scheme No. 81 (Sughad - Bhat) being sanctioned by
the State Government vide notification dated 25.09.2019, the
petition was preferred and therefore the ground raised that in
view of sanctioning of Final Town Planning Scheme the only
remedy available is to file an application under Section 17 of
the TP Act is not a good ground. Learned advocate submitted
that the petition deserves consideration by quashing and setting
aside the sanction of Town Planning Scheme No. 81 (Sughad -
Bhat) by notification dated 25.09.2019 and its subsequent
finalization.
5. Strenuously opposing the petition, learned Assistant
Government Pleader Mr. Sahil Trivedi for respondents made
following submissions: -
5.1 Dispute in this petition pertains to Town Planning
Scheme No. 81 (Sughad - Bhat). After, declaring intention of
the said scheme, the Draft Town Planning Scheme No. 81
(Sughad - Bhat) was sanctioned under Section 48(2) of the TP
Act on 19.12.2011. In the Draft Town Planning Scheme
sanctioned on 19.12.2011, against Original Plots, appropriate
Final Plots were allotted. The same are referred as under: -
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Sr. No. Revenue Survey No. Original Plot Final Plot
5.2 Thereafter, after following the due procedure, the Town
Planning Officer was appointed and the Town Planning Officer
proposed Preliminary Town Planning Scheme No. 81 (Sughad -
Bhat) as under: -
Sr. No. Revenue Survey No. Original Plot Final Plot
5.3 After, Town Planning Scheme No. 81 (Sughad - Bhat)
proposed by the Town Planning Officer, the State Government
sanctioned the scheme with certain modifications on
25.09.2019 which is as under: -
Sr. No. Revenue Survey No. Original Plot Final Plot
5.4 Therefore, it is true that there is some modification from
the proposed Town Planning Scheme No. 81 (Sughad - Bhat),
by Town Planning Officer and the Scheme sanctioned by the
State Authority. However, the said modification cannot be
stated to be a substantial modification. Learned AGP submitted
that once the Final Town Planning Scheme No. 81 (Sughad -
Bhat) was sanctioned by the State Government under Section
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65 of the TP Act, it has now attained the status of Act and
remedy available is to seek variation under Section 70 of the
TP Act and therefore the petition deserves to be rejected on
this ground alone. In support learned AGP relied upon decision
of this Court in the case of Varahi Co-operative Housing
Society Ltd. v.s State reported in 2019 (2) GLR 1088
(Paragraph Nos. 8, 9 and 10). As per the said decision, upon
sanctioning of Town Planning Scheme, the land vest absolutely
with the authority and the only remedy is to seek variation.
5.5 Learned AGP further submitted that apart from the above
contention, the modification done by the State Authority vide
notification dated 25.09.2019 is in consonance with the
provision of the TP Act. Vide notification dated 19.10.2011
(Annexure-R1, Page No. 70) it is provided that Town Planning
Officer shall allot Final Plots in their Original Plots or in the
nearby vicinity as far as possible. In the proposed Town
Planning Scheme, the Town Planning Officer had not followed
the notification and on that count, the Town Planning Officer
had committed an error and irregularity. Thus, since there was
error in the proposed Town Planning Scheme No. 81 (Sughad -
Bhat) by the Town Planning Officer, which was sent for
sanction to the State Government, the State Government
modified the said scheme to rectify the error and irregularity
committed by the Town Planning Officer. Since, only the
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modification was done under Section 65 of the TP Act by the
State Government, opportunity of hearing was not required and
therefore the contention that substantial modification was
done, without hearing the petitioners is of no consequence.
5.6 By referring to proviso to Section 65 of the TP Act,
learned AGP submitted that the said proviso does not refer to
opportunity of hearing and the empowerment of the State
Government to modify the Scheme to rectify the error and
irregularity which has been done in the present case.
5.7 Learned AGP further relied upon the decision in the case
of Parsottambhai Bhavanbhai Jasani v.s. State of Gujarat
reported in 2019 (0) GUJHC 56664, to submit that in
somewhat similar factual situation this Court has held that in
the cases of rectification of error or irregularity by the Town
Planning Officer, the State Government is not obliged to offer
an opportunity of hearing at the time of passing such
modification and therefore the present petition deserves
rejection.
5.8 Learned AGP also submitted that as can be evident from
the map annexed at Annexure-R2 (Page No. 31 = Page No. 74
of reply) that the case of the petitioners is considered for
allotment of Final Plot into Original Plot and therefore the
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same cannot be stated to be substantial change as canvased.
Moreover, the grievance raised cannot be considered at this
stage because under general circumstances the Final Plots are
physically given possession, only after sanction of Preliminary
Town Planning Scheme as provided under Section 67 of the TP
Act. In this case, when the Preliminary Town Planning Scheme
was sanctioned, it was sanctioned with the modification dated
25.09.2019. Therefore, prior to 25.09.2019, the petitioners
were never given physical possession of its Final Plots and
since the physical possession of the Final Plots were not given
to the petitioners, no material right affected which deserves
consideration. Learned AGP therefore submitted that the
petition being devoid of merits deserves to be rejected.
5.9 Lastly, Learned AGP submitted that generally the Town
Planning Schemes are for the betterment of public at large and
therefore since the modification is in the larger interest of the
public, the individual right may not be given priority.
6. Considered the submissions and the decisions relied upon.
The issue in this petition pertains to modification of Town
Planning Scheme No. 81 (Sughad - Bhat) by notification dated
25.09.2019 under which the State Government has sanctioned
the Scheme. By the said notification under Section 65 of the
TP Act, the State Government has made modification in the
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boundary and location of the land in question bearing Final
Plot Nos. 8, 10 and 11. It is noticed from the documents on
record that the Preliminary Town Planning Scheme No. 81
(Sughad - Bhat) was proposed by the Town Planning Officer
and against Revenue Survey No. 174, 102/2 + 103 paiki and
101/1 against Original Plot No. 23, 13+15 and 5 respectively
Final Plot Nos. 10, 8 and 11 were allotted to the petitioners.
Thereafter, the said Preliminary Town Planning Scheme No. 81
(Sughad - Bhat) was sanctioned by the State Government under
Section 65 of the TP Act by notification dated 25.09.2019
whereby certain modifications were made. Thus, the
modification made by the State Government from the proposed
Preliminary Town Planning Scheme by the Town Planning
Officer is not in dispute.
7. Further, from the map which is annexed at Annexure-R2
(Page No. 31 = Page No. 74 of reply) it is noticed that against
Original Plot No. 11/1 and 13 the petitioners were given Final
Plot No. 8, against Original Plot No. 5 the petitioners were
given Final Plot No. 11 and against Original Plot No. 23 the
petitioners were given Final Plot No. 10. Thus, at the time of
sanctioning town planning Scheme No.81 (Sughad- Bhat), by
TPO and as proposed for sanction, all these three Final Plots
are vertically adjacent to each other forming as if it is a
contiguous plot. However, when the Preliminary Town
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Planning Scheme No. 81 (Sughad - Bhat) was sanctioned under
Section 65 of the TP Act, some modification was done and the
locations of the Final Plots were changed which is evident
from Annexure-R5 (Page No. 80). Hence, from the said
annexure, it is noticed that the location of Final Plots was
changed to such an extent that all three Final Plots were
allotted in three different locations. Thus, the grievance of the
petitioners that all three Final Plots against their Original Plots
were modified by making substantial change in the location
merit acceptance.
8. From the map on record, it is evident that against three
Original Plots, three Final Plots were given and there is no
grievance with regard to the measurement with the area but
the grievance is with regard to the change in location, prior to
which no opportunity of hearing was given to the petitioners.
Admittedly, opportunity of hearing was not provided to the
petitioners.
8.1 Now, taking contention of the State Government that the
said modification vide notification dated 25.09.2019 was done
to rectify the error by the Town Planning Officer and the
reliance placed by the State Government on the notification in
the opinion of this Court would not override the Statutory
provision. The notification dated 19.12.2011 refers to the
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exercise of powers conferred by Section 48(2) of the TP Act
wherein Clause 1 of the Schedule refers that while finalizing
the Draft Town Planning Scheme, the Town Planning Officer
shall allot their Final Plots in their Original Plots or in the
near vicinity as far as possible. It is case of the State
Government that since the Final Plots were not allotted in
their Original Plots or in the near vicinity leading the State to
modify the Preliminary Town Planning Scheme, in the opinion
of this Court will not suggest that prior to such modification
hearing should not be given to the petitioners.
9. As decided by this Court in the case of Kishanbhai
Hargovandas Patel (supra), wherein, it was held that once the
State Government sanctions the Preliminary Town Planning
Scheme with a modification in the Preliminary Town Planning
Scheme suggested by the Town Planning Officer and instead of
Final Plot at location 'A' location 'B' is given, before such
modification, an opportunity is required to be given to the
original land owners to submit their objections and suggestions
and at that stage principles of natural justice are required to
be read into. Applying the same principles in this case, it
cannot be denied that the State Government while sanctioning
the Preliminary Town Planning Scheme which is proposed by
the Town Planning Officer has made modifications by making
change into location of the final plot allotted originally under
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the sanctioned Draft Town Planning Scheme and thereafter
proposed by the Town Planning Officer before sending it for
sanction of the State Authority. Further in one more decision
in the case of Laxmi Gold Orna House Limited (supra) similar
view is taken by this Court in the case of in Special Civil
Application No. 19717 of 2023.
10. Now the decision on which heavy reliance is placed by
learned AGP in the case of Parsottambhai Bhavanbhai Jasani
(supra) , it is held that when the error committed by the Town
Planning Officer is required to be corrected by the State
Government before sanctioning of the Town Planning Scheme
the State Government is not obliged in any manner to give
opportunity of hearing. However, in the case relied upon, it
was apparent error with regard to measurement of area. In the
opinion of this Court measurement of area cannot be equated
with the change in the location which has been done in this
case and therefore the decision relied upon by learned AGP in
the opinion of this Court would not be applicable in the facts
of the present case.
10.1 In another decision in the case of Varahi Co-operative
Housing Society Ltd. (supra) that once the Scheme has been
finalized by granting sanction by the State Authority it has
become part of the Act and remedy available is to file an
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application seeking variation under the provisions of the TP
Act in the opinion of this Court would not be applicable.
There is no dispute with regard to the said proposition
however, it cannot be ignored that at this stage, the grievance
of the petitioners is only with regard to breach of principles of
natural justice before making such modification. In the opinion
of this Court, once such opportunity is provided it is open for
the authority to pass appropriate orders in accordance with
law and that will not cause any prejudice to the petitioners.
11. In view of above, following order is passed: -
11.1 The modification dated 25.09.2019 at Annexure-A (Page
No. 19) is hereby quashed and set aside to the extent of
Clause 2 of the Schedule of notification dated 25.09.2019.
11.2 It is made clear that rest of the Schedule is not forming
part of the petition and therefore it is not to be changed.
11.3 The respondent - State is accordingly directed to issue
notice of hearing to the petitioners, for the purpose of
modification in relation to Clause 2 of Schedule of notification
dated 25.09.2019 and once such hearing is provided, the
authority is directed to pass reasoned order in accordance with
law, intimating the same to the petitioners.
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11.4 Parties to co-operate. This Court has not gone into the
merits of the modification and it is open for the authority to
pass appropriate orders in accordance with law after providing
opportunity of hearing to the petitioners.
12. With the above directions, present petition is disposed of.
sd/-
(MAUNA M. BHATT,J)
SHRIJIT PILLAI
