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2016 DIGILAW 494 (GUJ)

Becharbhai Ramjibhai Munjani v. State of Gujarat

2016-03-01

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. Heard Mr. R.R. Marshal, learned Senior Advocate with Mr. Manan Shah, learned advocate for the petitioners, Ms. Vrunda C. Shah, learned Assistant Government Pleader for respondent No. 1 and Mr. Dhaval G. Nanavati, learned advocate for respondent Nos. 2 to 4. 2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:-- "(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, and quash and set aside the T.P. Scheme No. 44 Jahangirabad, Surat, in so far as it refers to and relates to the petitioners property bearing Block No. 133, F.P. No. 38/A and 38/B situated at village Jahangirabad, Surat, in the interest of justice; (B) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, directing the respondent to reconsider the decision arrived at qua, T.P. Scheme No. 44 Jahangirabad, Surat, in so far as it refers to and relates to the petitioners property bearing Block No. 133, F.P. No. 38/A and 38/B situated at village Jahangirabad, Surat, and suitably vary the T.P. Scheme No. 44, Jahangirabad, Surat, in the interest of justice; (C) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, directing the respondent authorities to fulfill their assurance given to the petitioner, by allotting the land as mentioned in the Draft Town Planning Scheme No. 44 Jahangirabad, Surat tot he petitioner, in the interest of justice; (D) YOUR LORDSHIPS be pleased to stay the further proceedings in pursuance to Town Planning Scheme No. 44 Jahangirabad, Surat qua the petitioner's land, pending the admission, hearing and final disposal of this petition;" 3. Following facts emerge from the record of the petition:-- "3.1 The petitioners are owners and occupiers of land bearing block No. 133 admeasuring approximately 29846 sq. mtrs. situated within the city limits of Surat Municipal Corporation. It is the case of the petitioners that the petitioners purchased the land in question by a registered sale deed dated 30.3.2001. It is the case of the petitioners that respondent No. 3 herein approached the petitioners for acquiring the lands in question for Sewage Treatment Plant. It is the case of the petitioners that the petitioners being readily agreed for the same for which a letter of consent was executed dated 6.8.2001. It is the case of the petitioners that respondent No. 3 herein approached the petitioners for acquiring the lands in question for Sewage Treatment Plant. It is the case of the petitioners that the petitioners being readily agreed for the same for which a letter of consent was executed dated 6.8.2001. It is the case of the petitioners that when the consent letter was given, the petitioners were assured by the respondent - Corporation that only 30% land will be deducted from the area of the original land and relying upon the same, the petitioners gave possession of the land which was acquired by respondent No. 3. It further appears from the record that the lands belonging to the petitioners were subjected to Town Planning Scheme and were covered under the area of Town Planning Scheme No. 44, Jahangiraband, Surat. It further appears from the record that the lands of the petitioners were allotted Final Plot No. 38A and 38B, total admeasuring 15365 sq. mtrs. and 5548 sq. mtrs. respectively, aggregating to 20913 sq. mtrs. against the total area of 29846 sq. mtrs. The petitioners were informed by a notice dated 13.9.2004. It is further the case of the petitioners that in all other similarly situated cases, deduction was to the tune of 30%, but the petitioners did not object to the same and accordingly, draft scheme came to be sanctioned. It further appears that thereafter by a notice dated 22.1.2007, the petitioners were informed that the petitioners are now allotted Final Plot No. 38/A and 38/B admeasuring 9704 sq. mtrs. and 11183 sq. mtrs., total admeasuring about 20887 sq. mtrs. and according to the petitioners, deduction therefore come to 31.02%. It is further the case of the petitioners that by a further notice dated 22.1.2007, the petitioners were informed that the area of Final Plot No. 38/A and 38/B would now be 8880 sq. mtrs. and 9896 sq. mtrs., aggregating to 18776 sq. mtrs. and thus, the extent of deduction would be 37%. 3.2 It is the case of the petitioners that the same was done without any prior notice or intimation to the petitioners and the entire area of positioning of Final Plots which were allotted to the petitioners came to be changed. mtrs. and 9896 sq. mtrs., aggregating to 18776 sq. mtrs. and thus, the extent of deduction would be 37%. 3.2 It is the case of the petitioners that the same was done without any prior notice or intimation to the petitioners and the entire area of positioning of Final Plots which were allotted to the petitioners came to be changed. 3.3 The record indicates that thereafter, the petitioners filed a detailed representation dated 7.2.2007 contending that the deduction should be only to the tune of 30%. It appears from the record that the petitioners also made a representation to the Corporation and at that time also, the petitioners were assured that his representation shall be considered at the time of finalizing the preliminary scheme. The record indicates that ultimately, thereafter by a notification dated 26.9.2013, the preliminary scheme has been sanctioned under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act"). The record indicates that after sanctioning of the scheme, the petitioner has thereafter again filed a representation with a request to vary the scheme to all authorities on 8.3.2013, 14.8.3013 and 2.12.2013. The record indicates that thereafter, respondent No. 4 herein issued a notice as provided under Section 68 of the Act read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules") and being aggrieved by the same action, the present petition is filed." 4. Mr. R.R. Marshal, learned Senior Advocate for the petitioners candidly submitted that it is true that on sanctioning of the preliminary scheme under Section 65 of the Act, the same becomes part of the Act. However, the manner in which the scheme has been formulated and made, the same is without following due process of law. It is contended that though the petitioners may not have any fundamental rights, the fact remains that it is an important, constitutional and human rights and therefore, when the scheme is formulated, prepared, finalized and sanctioned, the authorities ought to take into consideration the facts qua Final Plots. It is contended that though the petitioners may not have any fundamental rights, the fact remains that it is an important, constitutional and human rights and therefore, when the scheme is formulated, prepared, finalized and sanctioned, the authorities ought to take into consideration the facts qua Final Plots. It is contended that in fact, the petitioners, as a responsible citizens, have willingly given the land for the public purpose and at that time, the petitioners were assured that the deduction in the area of original plot would not be more than 30%, whereas in reality, when the scheme was sanctioned, deduction has come to 37%. Mr. Marshal, relying upon the Division Bench judgment in the case of Kartik Mohan Patel v. State of Gujarat, reported in 2011 (4) GLR 3028, contended that it is the duty of the respondent-State as well as the authorities to consider the application of the petitioners, wherein the petitioners have requested to vary the scheme under Section 70 of the Act. It is contended that none of the representations filed by the petitioners have been considered while sanctioning the scheme and the decision has been taken without any proper notice. It is further submitted that though the scheme is sanctioned and there are inherent limitations in facts of this case, appropriate directions be issued to the respondent authorities to consider the application for variation in light of the observations made by the Division Bench of this Court in the case of Kartik Mohan Patel (supra). 5. Mr. Dhaval G. Nanavati, learned advocate for respondent Nos. 2 to 4 has relied upon the affidavit-in-reply filed by the respondent - Corporation. It is contended that the authority as well as the Town Planning Officer have scrupulously followed the procedure as prescribed under the Act and therefore, there is no error or irregularity or informality in the scheme and the preliminary scheme has been sanctioned under Section 65 of the Act by the State Government vide notification dated 26.9.2013 and the same has become part of the Act. It is further contended that only with a view to see that the Corporation and the authority gets possession of the reserved plots easily and the owner will get reasonable benefit in special cases, even 50% deduction is made in the scheme. It is further contended that only with a view to see that the Corporation and the authority gets possession of the reserved plots easily and the owner will get reasonable benefit in special cases, even 50% deduction is made in the scheme. It is also contended that in case if the petitioners are aggrieved by the provisions of the sanctioned preliminary scheme, they have to file an application for variation before the authority. It is submitted that it is boundant duty of the respondent -Corporation to implement the scheme and therefore, the impugned notice is given. It is therefore submitted that the petition deserves to be dismissed. 6. Ms. Vrunda C. Shah, learned Assistant Government Pleader has adopted the arguments made by Mr. Dhaval G. Nanavati, learned advocate for respondent Nos. 2 to 4 and has also submitted that the scheme is sanctioned and therefore, the same has become part of the Act and therefore, the petition deserves to be dismissed. 7. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties. 8. Considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the record of the petition, it appears that respondent No. 2 - Municipal Corporation and the petitioners mutually agreed by Sammatipatrak which is at Annexure-B to the petition. It appears that when the said agreement was entered into and the possession was given by the petitioners for the public purpose of Sewage Station, the scheme was at the stage of draft scheme and therefore, the same was tentative in nature. Though it is averred in the petition that the respondent -Municipal Corporation agreed for only 30% deduction, which is also fortified by the communication dated 22.1.2007 as averred in the affidavit by the respondent - Corporation, the Town Planning Officer is the ultimate authority to reconstitute the plot. As per the scheme of the Act and more particularly as provided under Section 52 of the Act, it is the Town Planning Officer appointed who has to reconstitute the plot keeping in mind the provisions of the Act. There is no provision of equal deduction in every original plot of the Town Planning Scheme area and in opinion of this Court, it depends upon the various factors including geographical location, the shape and the need of the planning for reconstitution. Mr. There is no provision of equal deduction in every original plot of the Town Planning Scheme area and in opinion of this Court, it depends upon the various factors including geographical location, the shape and the need of the planning for reconstitution. Mr. Marshal, learned Senior Advocate for the petitioners has also candidly submitted that now the scheme is sanctioned and therefore, the only remedy which is left with the petitioners is to pray for variation. On perusal of the representations which are on record, the petitioners have presented their case for deduction to the tune of only 30% before two different authorities including the State Government and the Corporation. On perusal of the record of the petition, it clearly appears that the Town Planning Officer has scrupulously followed the procedure as prescribed under the Act and the Rules. The grounds raised in the petition would not warrant any interference by this Court on the ground that there is error or irregularity or informality. However, as rightly pointed out by the learned Senior Advocate for the petitioners, the petitioners have a right to pray for variation of the scheme. 9. In light of the aforesaid therefore, though the petition is not entertained on merits, it would be open for the petitioners to file an appropriate application for variation and if any such application is filed, the same shall be dealt with by the respective authorities including the State Government keeping in mind the ratio laid down by the Division Bench of this Court in the case of Kartik Mohan Patel (supra). 10. Accordingly, the petition is disposed of. Rule discharged.