Gujarat High Court
Manoj Rasiklal Shah vs State Of Gujarat on 7 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/774/2025 ORDER DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 774 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 21780 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/LETTERS PATENT APPEAL NO. 774 of 2025
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MANOJ RASIKLAL SHAH & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR.DHAVAL DAVE, LD.SENIOR COUNSEL WITH MR JF
MEHTA(461) for the Appellant(s) No. 1,2,3,4
MS. MANISHA LAVKUMAR SHAH, LD. ADDL. ADVOCATE
GENERAL WITH MR.JAY B. TRIVEDI, ASST.GOVERNMENT
PLEADER for the Respondent(s) No. 1,2,3
MR.PRASHANT DESAI, LD. SENIOR COUNSEL WITH MS.NIYATI
CHAUHAN AND MR RITURAJ M MEENA(3224) for the
Respondent(s) No. 4
MRS KRISHNA G RAWAL(1315) for the Respondent(s) No. 7
MRS VASAVDATTA BHATT(193) for the Respondent(s) No. 5
MR. MITUL SHELAT WITH MS DISHA N NANAVATY(2957) for the
Respondent(s) No. 6
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 07/07/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. The present appeal is directed against a common
judgment and order dated 17.04.2025 passed by the learned
Single Judge in dismissing a bunch of writ petitions
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challenging the preliminary Town Planning Scheme on the
premise that due opportunity of hearing has not been
provided to the petitioners therein. In a set of appeals arising
out of the same judgment and order dated 17.06.2025 with
the leading Letters Patent Appeal No.742 of 2025, after
hearing the learned counsels for the parties, we have passed
the following orders:-
"
1. These appeals are arising out of the common judgment and
order dated 17.04.2025 passed by the learned Single Judge,
wherein the challenge to the drawing and preparation of
preliminary Town Planning Scheme No.67 (Hansol - 1) by the Town
Planning Officer was upturned. With the consent of the learned
counsels for the parties, all the appeals have been heard together
and are being decided by this common judgment.
2. The primary challenge to the preliminary Town Planning
Scheme finalized by the Town Planning Officer is about the final
plots allotted in the respective original plots of the petitioners and
carving out of the Town planning road. The main ground of
challenge to the decision of the Town Planning Officer is that
though petitioners filed objections before the Town Planning
Officer and the date was fixed for considering the objections but
the petitioners were not granted due opportunity of hearing. The
Town Planning Officer acted in haste and in non-compliance of the
order dated 21.10.2022 passed by this Court in the writ petition in
finalizing the preliminary town planning scheme. The petitioners'
right to raise objection to the proposed preliminary Town Planning
Scheme prior to issuance of the notification under Rule 26 (9) of
the Gujarat Town Planning and Development Rules, 1979 (for
short, "the Rules' 1979") has been taken away.
3. Much reliance has been placed on the provision of Rule
26(4) by the learned Senior Counsels appearing for the appellants
to argue that it was the duty of the Town Planning Officer to give
every person interested in any land affected by any particular of
scheme sufficient opportunity of stating their views and consider
their representations before issuing notification under Rule 26(9).
The reference was made to Rule 26(5) to submit that if during the
proceedings while hearing on the representations, if the Town
Planning Officer finds that there are conflicting claims or any
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difference of opinion with regard to any part of the scheme, he
shall record the points at issue and necessary particulars in his
own handwriting in a brief minute and shall give a decision with
the reasons therefor. All such minutes shall have to be appended to
the scheme while forwarding it to the State Government for
approval. Rule 26(6) further mandates the Town Planning Officer
to record and enter in the scheme any decision given by him.
4. The submission is that valuable rights of the petitioners for
considerations of their representations / objections as prescribed in
the rules framed under the Gujarat Town Planning and Urban
Development Act, 1976 (for short, "the Town Planning Act' 1976")
have been taken away. The Town Planning Officer not only
committed breach of the Rule 26, particularly Rule 26(4) of the
Rules' 1979, but also has not followed the provision of Section
52(2)(x) of the Town Planning Act' 1976 while preparing and / or
drawing the preliminary Town Planning Scheme, when the scheme
was under preparation and to be notified after disposal of the
objections.
5. To bring forth the circumstances before the Court that the
petitioners were not granted opportunity of hearing, it was
contended that in the writ petition filed by the petitioners, while
issuing notice on 21.10.2022, this Court had observed that no
coercive order shall be passed pursuant to the impugned notice
issued under Section 48. However, liberty was reserved with the
petitioners to the approach the Town Planning Officer to indicate
their difficulties.
6. As per the notice dated 14.10.2022, the petitioners were
required to remain present before the Town Planning Officer on
21.10.2022 and they remained present by writing an urgent letter
to the Town Planning Officer on 21.10.2022 at around 02:00 pm.
Though the order passed by this Court was not available with the
petitioners but they had informed the Town Planning Officer about
the same. Again, after receiving the order of the writ Court dated
21.10.2022, the petitioners had again approached the Town
Planning Officer on the said date itself with the copy of the order.
However, they were informed that the inward register was closed
and they could lodge their objections after Diwali holidays. The
next working day after Diwali holidays was 27.10.2022. The
petitioners, then, sent their representations on 23.10.2022 by
RPAD and on the next working day, i.e. 27.10.2022, got inward the
objections and requested for the date of hearing.
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7. However, surprisingly on 27.10.2022, instead of permitting
the petitioners to lodge their objections and giving them sufficient
opportunity to point out the difficulties with respect to the
proposed preliminary Town Planning Scheme, in clear defiance of
the order of this Court dated 21.10.2022, the Town Planning
Officer had issued notification under Rule 26(9) of the Rules' 1979.
8. The learned Senior Counsel appearing for the petitioners
had invited attention of the Court to various maps prepared during
the preparation of Town Planning Scheme and the suggestions
approved by the Municipal Corporation for laying down the Town
planning road besides the plots belonging to the petitioners to
submit that in the preliminary Town Planning Scheme, the final
plots have been carved out in such a manner that the consolidated
original plots belonging to the petitioners have been split into
small plots, carved out as final plots.
9. There is, however, a serious objection on behalf of the Town
Planning Officer about the claim of the petitioners that opportunity
of hearing was not afforded to them.
10. Ms.Manisha Lavkumar Shah, the learned Senior Advocate
appearing for the Town Planning Officer had invited attention of
the Court to the endorsement dated 21.10.2022 made on the notice
dated 14.10.2022 issued to the petitioners to vehemently argue
that the petitioners were heard and they could not substantiate
their objections on the proposed map. As per the submission of the
learned Senior Counsel appearing for the Town Planning Officer
(Respondent-State), on the application preferred by one Mr. B. R.
Mehta for the petitioner, fresh notice came to be issued on
14.10.2022 for fixing date for personal hearing as 21.10.2022
(appended at page No. '433' of the Paper-book).
11. The notice records that the said date was the last hearing
date prior to the declaration of decision of the Town Planning
Officer on the preliminary scheme. Mr. B. R. Mehta remained
present for personal hearing but refused to sign in the record of
the Town Planning Officer. The endorsement of the proceedings at
page No. '434' made on the notice dated 14.10.2022 has been
placed before us to submit that Mr. B. R. Mehta remained present
on behalf of the three petitioners herein and had discussed and
understood the plan for approximately one hour. The suggestions
were heard and oral discussions about solution was made but he
had refused to acknowledge hearing and sign the proceedings.
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12. The submission, thus, is that after conclusion of the
proceedings strictly in accordance with the provisions of the Town
Planning Act' 1976 and the rules framed thereunder, the
Preliminary Town Planning Scheme was finalized by the Town
Planning Officer and after receiving certification from the District
Inspector of Land Records (DILR), the Town Planning Officer has
declared his decision under Rule 26(9) on 27.10.2022. The
notification for declaration of the decision of the Town Planning
Officer was, thereafter, published in the newspaper on 29.10.2022
and 01.11.2022.
13. The decision of the Town Planning Officer was
communicated to the land owners in the prescribed Form 'J' on
03.11.2022 and 04.11.2022. A notification of the decision declared
by the Town Planning Officer was, thereafter, published on
11.11.2022.
14. In view of the submissions of the learned Senior Counsel
appearing for the rival parties, it is evident that the dispute is to
the effect that ample opportunity of hearing has not been provided
by the Town Planning Officer to the affected petitioners /
appellants herein, though they have submitted their objections to
challenge the proposal for carving out final plots and the Town
planning road.
15. As per the contention of the learned Senior Counsel
appearing for the State Respondents, the main dispute in the
sanctioned draft Town Planning Scheme was about the proposed
12 mts Town planning road on the premise that it was passing
through the factory premises situated at the land bearing Revenue
Survey No.316, however, after consideration of the representations
made by the land owners / petitioners in consultation with the
Ahmedabad Municipal Corporation, the Town Planning Officer had
shifted and re-aligned the proposed 12 mts Town planning road
towards eastern side by 10 mts with a view to save the regularized
constructions of the petitioners.
16. The submission is that there was no dispute left with regard
to the revenue Survey No.316 and moreover, the deductions
proposed from the said plot is only 26% whereas, the standard
deductions in the scheme is 30%. Similarly, objections have been
raised with regard to the claim of the petitioners in not providing
final plot in lieu of the original plot for the lands bearing revenue
Survey No. 296 / 26 / B, which is unsustainable.
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17. Having noted the submissions made by the learned counsels
for the parties, we find that there are some disputed questions of
facts and further the main issue is about the denial of opportunity
of hearing to the petitioners. The fact remains that the Town
Planning Scheme was finalized by the Town Planning Officer and
was notified in the Official Gazette in accordance with the
provisions of the Rule 26(9) as early as in the year 2022. The writ
petitions pending since 2022 have been decided in the month of
April 2025. However, till date, the Preliminary Town Planning
Scheme has not been sanctioned by the State Government and
from the submissions of the learned counsels for the parties,
pertinent is to note that the Preliminary Town Planning Scheme
finalized by the Town Planning Officer notified in the year 2022,
has yet not been forwarded to the State Government because of
the present litigation pending before this Court. The Town
Planning Scheme affects the rights of the people at large and
keeping the matter pending or relegating it for re-consideration by
the Town Planning Officer, in our considered opinion, would have
deleterious effect on the finalization of the Town Planning Scheme,
which confers rights on the land owners of a huge area. After three
years of notification of the preliminary Town Planning Scheme
finalized by the Town Planning Officer, when he has became
functus officio after issuance of the said notification, we do not find
it feasible to relegate the matter for fresh consideration at the
stage of Rule 26(4) of the Rules' 1979 i.e. to the Town Planning
Officer again for re-consideration of the objections of the
petitioners.
18. We say so for a further reason that there is a clear stand of
the respondents that the Town Planning Officer had given due
opportunity of hearing to the petitioners but the representatives of
the petitioners refused to sign the proceedings and the said stand
is disputed vehemently by the petitioners. It is difficult for us to
ascertain the truth of the rival allegations on the issue of grant of
opportunity of hearing from the material before us.
19. At this stage, we may also take note of the provisions of the
Section 65 (1) of the Town Planning Act' 1976, which empowers
the State Government to make such modifications as may be
necessary, in its opinion, for the purposes of the preliminary
scheme sent by the Town Planning Officer. The State Government
is also empowered to sanction or to refuse to sanction to the
preliminary scheme, forwarded by the Town Planning Officer by
forming an opinion within a period of two months from the date of
its receipt, as per Section 65(1)(a) of the Town Planning Act' 1976.
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20. In view of the above, in the peculiar facts and circumstances
of the case, in order to bring the dispute to its logical end,
considering the right of the petitioners to raise objections to the
alignment of final plots in the Town Planning Scheme and also that
the issue pertains to carving out of public road as Town planning
road, we find fit and proper to issue the directions as follows:-
I. The Town Planning Officer shall forward the notified
preliminary Town Planning Scheme to the State Government
within a period of four weeks in accordance with the provisions
of the Town Planning Act' 1976.
II. Simultaneously, the appellants before us are permitted to
file their objections / representations before the State
Government to the preliminary scheme so prepared and
forwarded by the Town Planning Officer within a period of six
weeks from today.
III. On such representations being received, the competent
officer shall issue notice to the objectors and fix a date for grant
of personal hearing to them. The Objectors are at liberty to
appear through their representatives on the date so
communicated to them.
IV. The decision, in accordance with Section 65 of the Town
Planning Act' 1976 shall be taken by the State Government,
only after disposal of the objections / representations filed by
the appellants herein, by passing a reasoned and speaking
order in accordance with law, which shall be duly
communicated to the objectors.
V. On receipt of the notice from the officer concerned, the
appellants herein who filed their objections are mandated to
cooperate and shall remain present on the date fixed by the
officer concerned as intimated to them. Any failure on their part
would result in forfeiture of their right to seek personal hearing
and it would be open for the officer concerned to deal with the
objections submitted to him in writing, by passing of reasoned
and speaking orders in accordance with law. All proceedings
shall be completed as early as possible, strictly in accordance
with the directions given hereinabove.
21. We may further note that some of the original writ
petitioners are not before us and this set of appeals have been filed
by few of the petitioners before the writ Court whose writ petitions
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have been dismissed by common judgment and order dated
17.04.2025 passed by the learned Single Judge. It is, therefore,
clarified that as we have not expressed any opinion on the merits of
the order passed by the learned Single Judge and in order to give
one chance, have granted liberty to the appellants to place their
objections before the State Government at the time of
consideration of the preliminary scheme, this order will be
applicable only to the appellants herein and no other person.
22. We may also clarify that since this order has been passed in
the peculiar facts and circumstances of the case taking note of the
fact that the Preliminary Town Planning scheme could not be
forwarded to the State Government for a period of about three
years because of the pendency of the writ petitions before this
Court, the directions contained herein granting opportunity to the
appellants to represent their case before the State Government,
shall not be treated as a precedent for future.
23. With the above observations and directions, the present set
of appeals stand disposed of. All pending applications are disposed
of, accordingly. "
2. It may be noted that while disposing of the writ petitions
giving opportunity to the appellants / petitioners therein to
make a representation before the State Government to the
preliminary Town Planning Scheme prepared by the Town
Planning Officer, we have clarified in paragraph No. '21' that
the said decision would be applicable only with respect to
those petitioners, who were appellants before us.
3. It is, however, submitted by Mr.Dhaval Dave, the learned
Senior Advocate assisted by Mr. J. F. Mehta, the learned
counsel for the appellants that the appellants herein are
similarly situated as those of the appellants in the Letters
Patent Appeal No.742 of 2025 decided by common judgment
and order dated 17.06.2025 along with other appeals.
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4. It is sought to be argued that the original petitioners /
appellants herein had appeared before the Town Planning
Officer in response to the notice dated 14.10.2022 on the date
fixed therein as 21.10.2022, but due opportunity of hearing
has not been provided and the Town Planning Officer, in a
casual manner, had rejected the claim of the petitioners for
allotment of separate final plot in lieu of the Survey No. 298, a
portion of which was purchased by the petitioners / appellants
herein vide registered sale deed dated 18.11.1999.
5. Ms. Manisha Lavkumar Shah, the learned Additional
Advocate General appearing for the State respondents has
invited the attention of this Court to the observations made in
paragraph No. '63' onwards of the judgment and order dated
17.04.2025 passed by the learned Single Judge to submit that
for the inter se dispute between the landholders, even the
District Inspector of Land Records (DILR) report namely the
Hissa Mapani was taken into consideration and opinion was
drawn that there was no merit in the objections raised by the
petitioners about the determination of the final plot by the
Town Planning Officer in the scheme.
6. We may also note that the appellants in the Letters
Patent Appeal No.742 of 2025 were also claiming to be the
owners and occupiers of different portions of Revenue Survey
No.298 of Hansol, purchased by them at different points of
time.
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7. Taking note of the submissions made by the learned
Senior Counsels appearing for the parties, suffice it to record
that the Letters Patent Appeal No. 708 of 2025 was decided
by us vide judgment and order dated 17.06.2025 on the sole
issue of grant of opportunity to the landholders to raise
objections to the Preliminary Town Planning Scheme, before it
was forwarded to the State Government.
8. We have noted that the main issue about the denial of
opportunity of hearing to the petitioners therein, could have
been addressed at the ends of the State Government, which
has power to sanction, or refuse to sanction the Preliminary
scheme forwarded by the Town Planning Officer in view of the
provisions of Section 65(1) of the Town Planning Act, 1976.
9. With the above, those appeals were disposed of with the
observations and directions as follows:-
"20. In view of the above, in the peculiar facts and circumstances
of the case, in order to bring the dispute to its logical end,
considering the right of the petitioners to raise objections to the
alignment of final plots in the Town Planning Scheme and also that
the issue pertains to carving out of public road as Town planning
road, we find fit and proper to issue the directions as follows:-
I. The Town Planning Officer shall forward the notified
preliminary Town Planning Scheme to the State Government
within a period of four weeks in accordance with the provisions
of the Town Planning Act' 1976.
II. Simultaneously, the appellants before us are permitted to file
their objections / representations before the State Government
to the preliminary scheme so prepared and forwarded by the
Town Planning Officer within a period of six weeks from today.
III. On such representations being received, the
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competent officer shall issue notice to the objectors and fix a
date for grant of personal hearing to them. The Objectors are at
liberty to appear through their representatives on the date so
communicated to them.
IV. The decision, in accordance with Section 65 of the
Town Planning Act' 1976 shall be taken by the State
Government, only after disposal of the objections /
representations filed by the appellants herein, by passing a
reasoned and speaking order in accordance with law, which
shall be duly communicated to the objectors.
V. On receipt of the notice from the officer concerned,
the appellants herein who filed their objections are mandated to
cooperate and shall remain present on the date fixed by the
officer concerned as intimated to them. Any failure on their part
would result in forfeiture of their right to seek personal hearing
and it would be open for the officer concerned to deal with the
objections submitted to him in writing, by passing of reasoned
and speaking orders in accordance with law. All proceedings
shall be completed as early as possible, strictly in accordance
with the directions given hereinabove. "
10. At this stage, Ms. Manisha Lavkumar Shah, the learned
Additional Advocate General would submit that in compliance
of the judgment and order dated 17.06.2025, the Town
Planning Officer has already forwarded the notified
preliminary Town Planning Scheme to the State Government.
11. Taking note of the issues raised herein, without
adverting to the claim of the petitioners about allotment of a
separate final plot in lieu of the plot purchased by the
petitioner vide sale deed dated 18.11.1999, we find it fit and
proper to dispose of the present appeal with the directions in
the same manner, as was given in Letters Patent Appeal
No.742 of 2025 connected with other matters. Pending civil
application also stand disposed of.
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12. It is, therefore, provided that:-
I. The appellants before us may file their objections /
representations before the State Government to the
preliminary scheme forwarded by the Town Planning Officer,
within the period of three (3) weeks from today.
II. On such representations being received, the competent
officer shall issue notice to the objectors and fix a date for
grant of personal hearing to them. The Objectors are at
liberty to appear through their representatives on the date so
communicated to them.
III. The decision in accordance with Section 65 of the Town
Planning Act' 1976 shall be taken by the State Government,
only after disposal of the objections / representations filed by
the appellants herein, by passing a reasoned and speaking
order in accordance with law, which shall be duly
communicated to the objectors.
IV. On receipt of the notice from the officer concerned, the
appellants herein who filed their objections are mandated to
cooperate and shall remain present on the date fixed by the
officer concerned as intimated to them. Any failure on their
part would result in forfeiture of their right to seek personal
hearing and it would be open for the officer concerned to deal
with the objections submitted to him in writing, by passing of
reasoned and speaking orders in accordance with law. All
proceedings shall be completed as early as possible, strictly
in accordance with the directions given hereinabove.
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13. We may also clarify that since this order has been
passed in the peculiar facts and circumstances of the case
taking note of the fact that the Preliminary Town Planning
scheme could not be forwarded to the State Government for a
period of about three years because of the pendency of the
writ petitions before this Court, the directions contained
herein granting opportunity to the appellants to represent
their case before the State Government, shall not be treated
as a precedence for future.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
SAHIL S. RANGER
