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2018 DIGILAW 1224 (GUJ)

Shreeji Swaroop Guruwarya v. State of Gujarat

2018-11-01

BELA M.TRIVEDI

body2018
JUDGMENT : BELA M. TRIVEDI, J. 1. The petitioner-Trust has sought a writ of Mandamus or a writ in the nature of Mandamus for quashing and setting aside the notice dated 22.02.2016 issued by the Assistant Estate Officer, New West Zone and also the order dated 17.06.2015 issued by Deputy Estate Officer of respondent-Municipal Corporation, and for commanding the respondents to take appropriate steps to vary Town Planning scheme No. 45 (Chandlodia-Gota), (hereinafter referred to as the said scheme), more particularly in respect of the Final Plot No. 56, sanctioned under the provisions contained in the Gujarat Town Planning and Urban Development Act (hereinafter referred to as the said Act). 2. The short facts giving rise to the present petition are that the land bearing Survey No. 242 originally belonged to one Ravjibhai Maganbhai Patel, who sold out 1619 sq. yards of land to Shreeji Swaroop Guruwarya Shri Punja Bapa Satsang Mandal Sanchalit Shri Akshar Purushottam Swaminarayan Mandir, Chandlodia Trust by executing a declaration on 12.10.1997 and handing over possession thereof to the Administrator of the said temple. The said Ravjibhai also executed a general Power of Attorney in favour of one Chandrakantbhai Amrutbhai Patel, one of the Administrators of the said temple and now the managing trustee of the petitioner-Trust. It is further case of the petitioner that a Hari Mandir was established by followers of Lalji Bapa Gurumaharaj, who expired on 26.09.1995, and was cremated on the land Bearing Survey No. 241, where his Samadhi exists. Before a formal deed of conveyance could be executed in favour of the petitioner- Trust, the said Ravjibhai passed away and thereafter his legal heirs sold the part of the land bearing Survey No. 242 to one Vijay Dahyabhai Nanera and others on 27.05.2011. The petitioner has also filed the suit for specific performance of the agreement against the legal heirs of the said Ravjibhai and for cancellation of the said sale-deed. However, in the meantime, under the preliminary Town Planning scheme, the Survey No. 242 came to be allotted Original Plot No. 56 and was reconstituted as Final Plot No. 56. A reconstitution statement came to be issued in respect of Survey No. 242 stating that there was a construction on the Original Plot No. 56 and that the share of the land owners in the Final Plot shall be proportionate to their share in the original plot. A reconstitution statement came to be issued in respect of Survey No. 242 stating that there was a construction on the Original Plot No. 56 and that the share of the land owners in the Final Plot shall be proportionate to their share in the original plot. The petitioner submitted the objections to the respondent authorities more particularly, with regard to the land bearing Survey Nos. 241 and 242. It is further case of the petitioner that thereafter the preliminary scheme came to be sanctioned by the State Government with effect from 04.12.2008, under which the situation of Final Plot No. 56 as shown in the Draft Town Planning Scheme was altered. The Estate and City Improvement Officer of the respondent Corporation had issued a notice under Section 67 of the said Act on 06.02.2012 to the original owners, and further notice dated 03.03.2012 along with the sketch of the land under Section 68 of the said Act, was pasted on the temple on 26.03.2012. The petitioner-Trust therefore made representation on 20.03.2012 requesting the respondent authorities to vary the scheme. Thereafter also, the petitioner kept on making representation and writing letters requesting the respondent authorities for variation of the scheme, however, no decision was being taken by the concerned authorities. According to the petitioner, if the Town Planning Scheme was implemented, the temple of the petitioner-Trust would be divided into two parts, and one part of the structure would form part of Final Plot No. 47. Thereafter, the final scheme came to be sanctioned by the Government on 12.05.2015, and the legal heirs of the deceased Ravjibhai received a notice dated 22.02.2016 from the respondent Corporation under Section 68 of the said Act. The petitioner having come to know about the same, again submitted objections to the respondent Corporation on 01.03.2016. When the petitioner visited the office of the Corporation, the petitioner was given copy of the letter dated 17.06.2015 rejecting the objections dated 20.03.2012 raised by the petitioner. The petitioner therefore has challenged the said notice dated 22.02.2016 and the order dated 17.06.2015 (Annexure A and B respectively). 3. The petition has been opposed by the respondent Corporation by filing the reply contending inter-alia that the draft Town Planning scheme was sanctioned by the State Government under Section 48(2) of the Act vide notification dated 26.08.2003. The petitioner therefore has challenged the said notice dated 22.02.2016 and the order dated 17.06.2015 (Annexure A and B respectively). 3. The petition has been opposed by the respondent Corporation by filing the reply contending inter-alia that the draft Town Planning scheme was sanctioned by the State Government under Section 48(2) of the Act vide notification dated 26.08.2003. Thereafter, the Town Planning Officer having been appointed, he had prepared the preliminary scheme, which was sanctioned by the Government on 04.12.2008, which has become part of the Act under Section 65 of the said Act. Hence, the rights of the owners and occupiers of the original plots which were reconstituted into Final Plot had stood determined in view of Section 67 of the said Act. According to the respondent, the land bearing Survey No. 242 was owned by one Bhailal Ramji and others. The said Survey Number was divided into 242/1 and 242/2. As per the sanctioned preliminary Town Planning scheme, the Survey No. 242 was allotted Original Plot No. 56 admeasuring 2529 sq. mtrs. and in lieu thereof, Final Plot No. 56 admeasuring 1517 sq. mtrs. was allotted to the original owners, as per the redistribution and valuation statement at Annexure R-III. Accordingly, the impugned notices under Section 67 and the notices under Section 68 read with Rule 33 were issued to the owners and occupiers including the present petitioner. However, the petitioner did not have any legal right over the said land, the objections raised by the petitioner were rejected vide order dated 17.06.2015 in accordance with law. It is further contended that having regard to the facts and circumstances of the case, the prayer for variation of Town Planning scheme also could not be granted. 4. The learned advocate Ms. Megha Jani appearing for the petitioner submitted that the petitioner trust is in occupation of the land in question since last many years, and if the Town Planning scheme is implementated, the temple where the Samadhi of Lalji Bapa Gurumaharaj exists, would be divided into two parts, which would hurt the feelings of devotees. She also relied upon number of correspondence made by the petitioner with the officers of the respondent Corporation as also, the then Ministers to submit that the case was worth considering for variation of the scheme under Section 70 of the said Act. However, the learned advocate Mr. She also relied upon number of correspondence made by the petitioner with the officers of the respondent Corporation as also, the then Ministers to submit that the case was worth considering for variation of the scheme under Section 70 of the said Act. However, the learned advocate Mr. Satyam Chhaya appearing for the respondent Corporation submitted that the petitioner being not the legal occupier of the land in question, has no locus standi to file the present petition. According to him, merely because the petitioner had proposed for variation of the scheme, the implementation thereof, could not be stalled in view of judgment of Supreme Court in the case of N. Nanalala Kickvawala, 2005 (12) SCC 649. 5. From the aforestated facts and submissions, it clearly emerges that there is a dispute going on in respect of the lands in question between the petitioner-Trust, the legal heirs of the owners of Survey No. 242, and the owners of the adjoining land being Survey No. 241. That apart, as transpiring from the petition itself, the petitioner-Trust is not the owner of the land bearing Final Plot No. 56, and the owners of the said plot have not come forward to challenge the decision of the State Government in finalizing the Town Planning scheme in question. 6. It is needless to say that on and after the date fixed in the notification, that may be issued by the State Government sanctioning the preliminary scheme or the final scheme, as the case may be, such scheme has the effect as if it were enacted under the Act, in view of Section 65(3) of the said Act. As per Section 67, on the day on which the preliminary scheme comes into force, all rights in the original plots, which have been reconstituted into the Final Plots, stand determined and the Final Plots become subject to the rights settled by the Town Planning Officer. It can also not be gainsaid that as per Section 68 of the Act, on and after the date on which the preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme, could be summarily evicted by the appropriate authority in accordance with the prescribed procedure. 7. It can also not be gainsaid that as per Section 68 of the Act, on and after the date on which the preliminary scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme, could be summarily evicted by the appropriate authority in accordance with the prescribed procedure. 7. In the instant case, the preliminary scheme was sanctioned by the Government on 04.12.2008, and therefore, the rights of the owners/occupiers of the original plots had stood determined and become subject to the rights settled by the Town Planning officer. As transpiring from the record, the Survey No. 234 was owned by one Parshottambhai and others. As per the sanctioned preliminary Town Planning scheme, the land bearing Survey No. 234 was alloted Original Plot No. 47 admeasuring 4350 sq. mtrs. and in lieu thereof Final Plot No. 47 admeasuring 2610 was reconstituted and allotted to the said Parshottambhai and others as per the Redistribution and Valuation Statement produced by the respondent at Annexure R-II. The land bearing Survey No. 242 was owned by one Bhailal Ramji and others. As per the sanctioned preliminary Town Planning scheme, the said Survey No. 242 was allotted Original Plot No. 56 admeasuring 2529 sq. mtrs. and in lieu thereof Final Plot No. 56 admeasuring 1517 sq. mtrs. was reconstituted and allotted to the said Bhailal Ravjibhai and others as per Redistribution and Valuation Statement produced by the respondent as per Annexure R-III. Under the circumstances, the petitioner herein was neither the owner of Survey No. 242 nor of Survey No. 234, which have been now reconstituted as Final Plot No. 56 and 47 respectively. However, it appears that since the petitioner was in occupation on the part of the said lands, the respondent Corporation being under obligation to implement the sanctioned Town Planning scheme, had issued the notice under Section 67 to the owners and notices under Section 68 read with Rule 33 to the occupiers including the petitioner of the said lands. The petitioner had raised objections to the said notices, however, the same were rejected by the respondent authority and directed to hand over vacant and peaceful possession of the land in question. The petitioner had raised objections to the said notices, however, the same were rejected by the respondent authority and directed to hand over vacant and peaceful possession of the land in question. Thus, the petitioner being not the owner of the land in question and the rights in respect of the said lands more particularly of Final Plot No. 56 and 47, having stood determined on the sanctioning of the preliminary Town Planning scheme by the State Government, the petitioner has no right to continue in possession of the lands in question, or the disputed construction, which forms part of two Final Plots i.e. Final Plot 47 and 56. 8. So far as the variation of the Town Planning scheme is concerned, as per Section 70 of the said Act, if after the preliminary scheme or final scheme has come into force, the appropriate authority considers that the scheme is defective on account of error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the scheme. If on receiving such application or otherwise the State Government is satisfied with the variation required is not substantial, the State Government has to publish the draft of such variation in the prescribed manner. In the instant case, though the petitioner had time and again requested the respondent Corporation to take action to vary the scheme, no such decision as required under Section 70(1) of the said Act for applying to the State Government for variation of the scheme, has been taken by the Corporation. The petitioner also does not appear to have requested the State Government to vary the scheme. Under the circumstances, no writ of mandamus directing the respondent State Government to vary the Town Planning Scheme No. 45 (Chandlodia- Gota) more particularly in respect of Final Plot 56, as prayed for by the petitioner, could be granted. 9. In that view of the matter, the petition being devoid of merits, is dismissed. Notice is discharged. Interim relief, granted earlier, shall stand vacated forthwith.