Research › Search › Judgment

Gujarat High Court · body

2012 DIGILAW 171 (GUJ)

Narshibhai Raghavbhai Savani v. State Of Gujarat

2012-03-01

A.J.DESAI, V.M.SAHAI

body2012
Judgment ( 1. ) WE have heard Mr.Navin Pahwa, learned counsel appearing for the appellants, Ms.Jirga Jhaveri, learned Assistant Government Pleader for respondent nos.1 and 2 and learned Senior Counsel Mr.Prashant Desai, assisted by Mr.Kaushal Pandya, appearing for respondent no.3. ( 2. ) THOUGH this matter is listed for admission, with the consent of the learned counsel for the parties, we have taken up this matter for final disposal as the facts are not disputed. Mr.Navin Pahwa, learned counsel appearing for the appellants has urged that once the State Government has revised preliminary scheme under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (For short "the Act"), then the entire proceedings have to be started de novo from the stage of Section 40 and fresh draft scheme is required to be prepared by the local authority. He has further urged that all the restrictions imposed would cease in view of Section 49(1)(g) of the Act. The facts are that the appellants were occupying the land bearing survey nos. 5 and 6 situated at Dumbhal, Ta: Choryasi, Dist: Surat. Surat Municipal Corporation proposed draft town planning scheme 33 under the provisions of the aforesaid Act. The draft scheme was also sanctioned by the State Government under section 48(2) of the Act on 21.1.2000. Thereafter, preliminary scheme was required to be prepared and the State Government appointed Town Planning Officer who prepared a preliminary scheme. When preliminary scheme was sent to the State Government for grant of sanction, the State Government refused the sanction by letter dated 1.7.2010 conditionally. The sanction was refused by the State Government with a direction contained in the Schedule which was required to be followed by Town Planning Officer and Therefore, preliminary scheme was required to be prepared. ( 3. ) THE facts emerging in the present case are as under: THE petitioners claim to be the persons who were occupying the land bearing Survey Nos. 5 and 6 situated at Dumbhal, Tal: Choryasi, Dist. Surat. That the respondent corporation / appropriate authority proposed Draft Town Planning Scheme No.33 under the provisions of the Act and the aforesaid land in question came to be included in the Draft Town Planning Scheme No.33. It appears that the dispute is with respect to land bearing Survey No.6. 5 and 6 situated at Dumbhal, Tal: Choryasi, Dist. Surat. That the respondent corporation / appropriate authority proposed Draft Town Planning Scheme No.33 under the provisions of the Act and the aforesaid land in question came to be included in the Draft Town Planning Scheme No.33. It appears that the dispute is with respect to land bearing Survey No.6. That under the Draft Town Planning Scheme No.33, the land bearing Survey No.6 was given Final Plot No.6A and 6B. That large area of the aforesaid land came to be reserved for Community Centre, which has been described as R-3 and Public Utility Centre which has been described as R-4. It is the case of the petitioners that as the respondent Corporation started construction in the reserved area described as R-3 and R -4 without even awaiting decision of Town Planning Officer, finalization of scheme and vesting of the property with the Corporation, some of the predecessors of the petitioners filed Special Civil Application No.13681 of 2005 and other allied matters before this Court for quashing and setting aside the Draft Town Planning Scheme No.33(Dumbhal) Surat. Thus, the predecessor in title challenged the Draft Town Planning Scheme in which the aforesaid land was put under reservation for the Community Centre and Public Utility Centre. That this Court disposed of the aforesaid Special Civil Application by observing that it will be open for the respective petitioners to submit objection before the State Government before whom the Draft Town Planning Scheme was pending for sanction. It appears that, thereafter some of the predecessors of the petitioners preferred Special Civil Application No.16709 of 2007 before this Court and sought direction to finalize the Town Planning Scheme after considering the objection of the petitioners. That by order dated 1.9.2008 learned Single Judge disposed of the said Special Civil Application No.16079 of 2007 recording the statement on behalf of the Town Planning Officer that the Preliminary Scheme will be submitted to the State Government and this Court disposed of the aforesaid Special Civil Application by observing that once the Preliminary Scheme is presented before the Government, the Government has to proceed further in terms of provisions contained in the Act and in particular Section 65 thereof. It appears that, thereafter the Town Planning Officer prepared the Preliminary Town Planning Scheme and submitted the same to the State Government for its sanction under Section 65 of the Act and while submitting the proposed Preliminary Town Planning Scheme, the Town Planning Officer proposed to allot to the petitioners Final Plot No.10 and 11 in lieu of their original lands bearing Survey Nos. 5 and 6 paiki. It appears that thereafter, the said Preliminary Town Planning Scheme submitted by the Town Planning Officer came to be considered by the State Government. It appears that there were number of complaints and objections against the Preliminary Town Planning Scheme submitted by the Town Planning Officer i.e. with respect to entire Preliminary Town Planning Scheme and after receiving the complaints and the objections against the Preliminary Town Planning Scheme, the State Government decided to inquire into the allegations made against the Town Planning Officer as well as the Preliminary Town Planning Scheme No.33 and one Shri V.D. Vaghela, Senior Town Planner, Saurashtra Department, Rajkot inquired into the complaint/objections as per the direction given by the State Government and after considering the inquiry report and considering the objections received by the Corporation as well as others against the proposed Preliminary Town Planning Scheme , the State Government found large scale of illegalities committed by the Town Planning Officer while preparing the Preliminary Town Planning Scheme and Therefore, the State Government by impugned communication and in exercise of powers under Section 65 of the Act has refused to sanction the Preliminary Town Planning No.33(Dumbhal) Surat and has directed the Town Planning Officer to draw Preliminary Town Planning Scheme afresh considering the observations made in the inquiry report as well as representations received by the State Government, as per the provision of the Act. Being aggrieved and dissatisfied with the aforesaid notification and refusing to give sanction to the Preliminary Town Planning Scheme No.33(Dumbhal) Surat and directing the Town Planning Officer to draw the Preliminary Town Planning Scheme afresh considering the observations made in the schedule. ( 4. Being aggrieved and dissatisfied with the aforesaid notification and refusing to give sanction to the Preliminary Town Planning Scheme No.33(Dumbhal) Surat and directing the Town Planning Officer to draw the Preliminary Town Planning Scheme afresh considering the observations made in the schedule. ( 4. ) THE question which arises for consideration as urged by the learned counsel for the parties is as to whether after rejection by the State Government to sanction preliminary scheme under section 65 of the Act, would the proceedings start de novo from the stage of Section 40 or from the stage from which preliminary scheme is to be prepared. THE learned Single Judge has considered this question in paragraphs 12, 13 and 14 which is extracted below: "12. On considering the entire scheme of the Act none of the aforesaid submissions made on behalf of the petitioners have any substance. On refusing to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer, as such what is refused by the State Government is to sanction Preliminary Town Planning Scheme submitted by the Town Planning Officer and not the draft Town planning scheme which is already sanctioned in the year 2000. Therefore, on refusal to sanction the Preliminary Town Planning Scheme submitted by the Town Planning Officer, the matter is to be sent back to the Town Planning Officer only for preparing the Preliminary Town Planning Scheme afresh and afresh proceedings right from Sections 40 to 50 are not required to be undertaken again as sought to be contended on behalf of the petitioners. THE Draft Town Planning Scheme sanctioned by the State Government stands and it is not affected at all by the decision of the State Government under Section 65 of the Act of refusing to sanction the Preliminary Town Planning Scheme. Even the reliance placed upon Section 49(1)(g) of the Act is also misplaced. Section 49 puts restriction on the development of the land included in the scheme, by any persons and/ or after the date on which the draft scheme is published under Section 41 of the Act. Whenever the draft scheme is submitted to the State Government for its sanction under Section 48 of the Act the State Government may sanction the same or refuse to sanction the same. Whenever the draft scheme is submitted to the State Government for its sanction under Section 48 of the Act the State Government may sanction the same or refuse to sanction the same. Similarly after the draft town planning scheme is sanctioned by the State Government under Section 48 of the Act and thereafter the Town Planning Officer prepares the Preliminary Town Planning Scheme under Section 52 of the Act and it is sent to the State Government for its sanction, the State Government in exercise of powers under Section 65 of the Act may sanction the said Preliminary Town Planning Scheme and/ or refuse to sanction the same. Therefore, there can be two eventualities on different stages, one at the stage of draft town planning scheme and another at the stage of Preliminary Town Planning Scheme. In light of the above, the provisions of Section 49(1)(g) of the Act provides that the restrictions imposed by Section 49 of the Act cease to operate in the event of the State Government refusing to sanction the draft scheme or the preliminary scheme or in the event of the withdrawal of the scheme under Section 66 or in the event of the declaration of intention lapsing under sub-section(3) of Section 42. On fair reading of Section 49(1)(g) of the Act in case the State Government refuses to sanction the draft scheme restrictions imposed under Section 49 will cease to operate. However, on refusal to sanction the Preliminary Town Planning Scheme by the State Government in exercise of powers under Section 65 of the Act, the restriction imposed under Section 49 of the Act will not automatically cease to operate as sought to be contended on behalf of the petitioners, as still on refusal to sanction the Preliminary Town Planning Scheme, the draft Town Planning scheme would still be there and in existence and Therefore, the restrictions under Section 49(1)(g) of the Act would still be in operation. Therefore, the contention on behalf of the petitioners relying upon Section 49(1)(g) of the Act to the effect that on refusing to sanction the Preliminary Town Planning Scheme by the State Government in exercise of powers under Section 65 of the Act, the entire procedure as required to be followed right from Section 40 of the Act is required to be followed and/ or undertaken, cannot be accepted and same has no substance. On refusal to sanction the Preliminary Town Planning Scheme by the State Government, the Town Planning Officer is required to prepare the Preliminary Town Planning Scheme in accordance with law and he has to undertake the exercise from the stages of Section 50 onwards more particularly, Section 52 of the Act i.e. from the stage after the sanction of the draft Town Planning scheme. 13. Now, so far the main grievance made by the learned advocate for the petitioners with respect to direction issued by the State Government issued in the impugned notification dated 1.7.2010 observing that the Town Planning Officer to prepare the Preliminary Town Planning Scheme afresh considering (A) THE observation of the inquiry report annexed herewith and (B) Representations received by the Government is concerned, it appears that by observing the same, the State Government has not committed any error and/ or illegality and/ or has not acted contrary to the provisions of the Act. When the Preliminary Town Planning Scheme prepared and submitted by the Town Planning Officer has been rejected and/ or is refused to be sanctioned by the State Government on considering the representations/ complaints against the said Preliminary Town Planning Scheme, while preparing the Preliminary Town Planning Scheme afresh the Town Planning Officer is required to bear in mind the said representations / complaints so that the said illegality and/ or irregularity is not committed again by him while preparing the afresh Preliminary Town Planning Scheme. Therefore, as such no illegality has been committed by the State Government in observing that while preparing the fresh Preliminary Town Planning Scheme, the Town Planning Officer is required to consider the observations of the inquiry report as well as representations submitted by the Government as per the provisions of the Act. THE Town Planning Officer is required to take its own decision while preparing the Preliminary Town Planning Scheme and is also required to take its own decision on the objections and suggestions invited while preparing the Preliminary Town Planning Scheme afresh and is required to send the same to the State Government along with the Preliminary Town Planning Scheme when it is sent to the State Government for its sanctioned under Section 65 of the Act. It is to be noted that while preparing the Preliminary Town Planning Scheme, the Town Planning Officer is required to consider Section 52 of the Act r/w Rules 26 of the Gujarat Town Planning Rules. It is to be noted that even the Town Planning Officer is required to draw the Preliminary Town Planning Scheme in the prescribed form in accordance with Draft Town Planning Scheme only. In the present case, it has been found by the State Government that while preparing the Preliminary Town Planning Scheme, the Town Planning Officer has prepared the scheme which was contrary to the Draft Town Planning Scheme, which was not permissible. Therefore, while preparing fresh Preliminary Town Planning Scheme, the Town Planning Officer is required to consider the aforesaid provisions of the Act. It is to be noted that as such there is no direction issued by the State Government in the impugned notification directing the Town Planning Officer to prepare the Preliminary Town Planning Scheme afresh in a particular mode and/ or manner. By impugned notification while refusing to sanction the Preliminary Town Planning Scheme No.33 (Dumbhal), Surat, the State Government has observed that while preparing the Preliminary Town Planning Scheme afresh the Town Planning Officer to consider and /or bear in mind the inquiry report as well as representations received by the State Government so that while preparing the fresh Preliminary Town Planning Scheme the Town Planning Officer may consider the same in accordance with law. It is to be noted that in the impugned notification itself State Government has observed that Town Planning Officer to prepare the afresh Preliminary Town Planning Scheme considering the inquiry report as well as representation received by the State Government in accordance with the provisions of Act. Therefore, as such no illegality has been committed by the State Government in making above observation in the impugned notification while directing the Town Planning Officer to prepare the Preliminary Town Planning Scheme afresh. 14. Therefore, as such no illegality has been committed by the State Government in making above observation in the impugned notification while directing the Town Planning Officer to prepare the Preliminary Town Planning Scheme afresh. 14. As stated above now Town Planning Officer shall prepare the Preliminary Town Planning Scheme afresh in accordance with provisions of the Act and Rules, more particularly Section 52 r/w Rule 26 and 27 of the Gujarat Town Planning Rules and considering the observation made by the State Government and at that stage ample opportunity shall be given to the petitioners and other persons by the Town Planning Officer while preparing the Preliminary Town Planning Scheme and submitting it to the State Government as required under Section 52 of the Act r/w Rules 26 and 27 of the Gujarat Town Planning Rules. Therefore, as such no prejudice shall be caused to the petitioners." ( 5. ) WE are in agreement with the view taken by the learned Single Judge in the aforementioned paragraph. However, we would like to add that the draft scheme and the preliminary scheme has different dimensions for the consideration by the State Government when it is placed for approval/sanction. As per Section-44 of the Act, the draft scheme shall contain certain particulars, which reads as under: Sec.44. Contents of draft scheme The draft scheme shall contain the following particulars, namely:- (a) the area, ownership and tenure of each original plot; (b) the particulars of land allotted or reserved under clause (e) of sub-section (3) of section 40 with a general indication of the uses to which such land is to be put and the terms and conditions subject to which such land is to be put to such uses; (c) the extent to which it is proposed to alter the boundaries of original plots; (d) an estimate of the net cost of the scheme to be borne by the appropriate authority; (e) a full description of all the details of the scheme under sub-section (3) of section 40 as may be applicable; (f) the laying out or relaying out of land either vacant or already built upon; (g) the filling up or reclamation of low-lying, swampy or unhealthy areas or levelling up land; and (h) any other prescribed particulars. ( 6. ( 6. ) AFTER making and publication of draft scheme, the appropriate authority is required to consider the objections to the draft scheme, if any, received by it. Section-47 of the Act deals with the objections raised with regard to the draft scheme to be considered by the appropriate authority. Section 47 of the Act reads as under: Sec. 47. Objections to draft scheme to be considered: If within one month from the date of publication of a draft scheme, any person affected by such scheme, communicates in writing to the appropriate authority, any objections relating to such scheme, the appropriate authority shall consider such objection and may at any time before submitting the draft scheme to the State Government as hereinafter provided modify such scheme as it thinks fit. [Provided that the appropriate authority may, in such circumstances as may be prescribed and with the previous sanction of the State Government reduce the aforesaid period of one month to fifteen days for inviting objections to the draft scheme.] ( 7. ) SIMILARLY, as far as preliminary and final scheme is concerned, Section-52 of the Act provides the Contents of preliminary and final scheme. Section-52 of the Act reads as under: "Sec. 52. Contents of preliminary and final scheme. (1) In a preliminary scheme, the Town Planning Officer shall, (i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for a purpose of the appropriate authority and the final plots; (ii) after giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the shares of such persons; (iii) provide for the total or partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with provisions of section 81; (iv) determine the period within which the works provided in the scheme shall be completed by the appropriate authority. (2) The Town Planning Officer shall submit the preliminary scheme so prepared to the State Government for sanction and shall thereafter prepare and submit to the State Government the final scheme in accordance with the provisions of sub-section (3). (2) The Town Planning Officer shall submit the preliminary scheme so prepared to the State Government for sanction and shall thereafter prepare and submit to the State Government the final scheme in accordance with the provisions of sub-section (3). (3) In the final scheme, the Town Planning Officer shall – (i) fix the difference between the total of the values of the original plots and the total of the values of the plots included in the scheme in accordance with the provisions of clause (f) of sub-section (1) of section 77; (ii) determine whether the areas used, allotted or reserved for a public purpose or purposes of the appropriate authority are beneficial wholly or partly to the owners or residents within the area of the scheme; (iii) estimate the portion of the sums payable as compensation on each plot used, allotted or reserved for a public purpose or for the purpose of the appropriate authority which is beneficial partly to the owners or residents within the area of the scheme and partly to the general public; which shall be included in the cost of the scheme; (iv) calculate the contribution to be levied under sub-section (1) of section 19, on each plot used, allotted or reserved for a public purpose or for the purpose of the appropriate authority which is beneficiary partly to the owners or residents within the area of the scheme and partly to the general public; (v) determine the amount of exemption, if any, from the payment of contribution that may be granted in respect of plots exclusively occupied for religious or charitable purposes; (vi) estimate the increment to accrue in respect of each plot included in the scheme in accordance with the provisions of section 78; (vii) calculate the proportion of the contribution to be levied on each plot in the final scheme to the increment estimated to accrue in respect of such plot under sub-section (1) of section 79; (viii) calculate the contribution to be levied on each plot included in the final scheme; (ix) determine the amount to be deducted from, or added to, as the case may be, the contribution leviable from a person in accordance with the provisions of section 79; (x) estimate with reference to claims made before him, after notice has been given by him in the prescribed manner and in the prescribed form, the compensation to be paid to the owner of any property or right injuriously affected by the making of the town planning scheme in accordance with the provisions of section 82; (xi) draw in the prescribed form the preliminary and the final scheme in accordance with the draft scheme. Provided that the Town Planning Officer may make variation from the draft scheme, but no such variation, if it is of a substantial nature, shall be made except with the previous sanction of the State Government, and except after hearing the appropriate authority and any owners who may raise objections." Explanation – (i) For the purpose of this proviso, 'variation of a substantial nature' means a variation which is estimated by the Town Planning Officer to involve an increase of ten percent in the costs of the scheme as is described in section 77 or rupees one lac, whichever is lower, on account of the provisions of new works or the allotment of additional sites for public purposes included in the preliminary scheme drawn up by the Town Planning Officer. (ii) If there is any difference of opinion between the Town Planning Officer and the appropriate authority as to whether a variation made by the Town Planning Officer is of substantial nature or not, the matter shall be referred by the appropriate authority to the State Government whose decision shall be final. ( 8. ) NOW, comparing Section 44 with Section 52 of the Act, it is clear that no notice is required to be issued to the affected persons with the draft scheme but only objections which might have been submitted by the affected parties are required to be dealt with. While Section-52 of the Act makes it mandatory for the Town Planning Officer to issue notice in prescribed manner and in the prescribed form to the persons affected by the scheme by defining and demarcating the areas allotted to, or reserved for, any public purpose or for a purpose of the appropriate authority and the final plots as per provisions of the Gujarat Town Planning And Urban Development Rules, 1979. ( 9. ) IN our view, when, after considering the objections, if any, the draft scheme is sent for approval to the government under Section-47 of the Act and if the same is approved under Section 48(2) of the Act, there is no need to proceed with the scheme de novo, that means, to start from Section - 41 of the Act. It would be a futile exercise in the case when the Government has sanctioned the draft scheme submitted by the appropriate authority, to start the same de novo, which is not envisaged in the Act. It would be a futile exercise in the case when the Government has sanctioned the draft scheme submitted by the appropriate authority, to start the same de novo, which is not envisaged in the Act. It is presumed that when appropriate authority sends its draft scheme for approval to the State Government, it has considered the objections received under section 47 of the Act. Moreover, when the State Government approves the draft scheme, it has accepted the draft scheme with its contents, the objections (under section 47 of the Act), the modification (it made pursuant to objections). Upto this this stage, an objector is not required to be called upon to support his objections. IN view of this legal aspect, in our opinion, once a draft scheme is sanctioned by the State Government, the stage of reopening the proceedings from the stage of section 41 would not be necessary, unless by judicial pronoucement, the action of the State Government of sanctioning the scheme is quashed and set aside. As provided under Section-48 of the Act itself that the Government can refuse to sanction the draft scheme. If the State Government does not sanction the draft scheme, only in that case, the proceedings would start de novo i.e. from Section-40 of the Act and not in case of refusing to sanction the preliminary scheme. IN the present case, the draft scheme is sanctioned by the government and since the government has directed to commence to proceed with the scheme from the stage where the preliminary scheme is to be framed, the appellants shall have all rights available under the Act. ( 10. ) IN view of what is stated here-in-above, we are of the opinion that the Town Planning Officer shall prepare a preliminary scheme afresh taking into consideration the direction given by the State Government contained in the schedule to the order dated 1.7.2010 and not from the stage of Section-40 of the Act. ( 11. ) SO far as the argument of Mr.Pahwa, learned counsel appearing for the appellant that restriction imposed by section 49(1)(g) of the Act would cease to operate is concerned, it is not disputed by him that possession of the land has been taken by the Corporation and they have made construction on it. Therefore, the appellant cannot development the land any further. Therefore, the appellant cannot development the land any further. Mr.Pahwa has urged that in Special Civil Applications No.13681 of 2005 and 14216 of 2008, the petitions have been disposed with a direction that the construction made by the Corporation would be subject to the decision of the Court. In our opinion, final decision has not yet been taken by the State Government and the matter is at the preliminary stage of finalisation of the preliminary scheme. Therefore, we do not find any merits in the arguments of the learned counsel for the appellants. This Letters Patent Appeal fails and is accordingly dismissed.