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2021 DIGILAW 1098 (GUJ)

PRADIPBHAI RATILAL NAVIK v. STATE OF GUJARAT

2021-11-30

BIREN VAISHNAV

body2021
ORDER : 1. The prayer of the petitioner reads as under: “(B) YOUR LORDSHIPS may be pleased to issue writ in nature of mandamus of any other appropriate writ, order or direction directing the respondents to make necessary variation in the Preliminary Town Planning Scheme No.44 (Jahangirabad) for corecting area of the Block No.128- Original Plot No.35 as that of 18,211 Sq. Mtrs. Instead of 16,233 Sq. Mtrs. and consequently for increasing area of corresponding Final Plot/s proportionately to be allotted to the petitioners. AND/OR IN THE ALTERNATE YOUR LORDSHIPS may be pleased to issue writ of mandamus or a writ in nature of mandamus of any other appropriate writ, order or direction quashing and setting aside the Notification dated 26.09.2013 (Annexure-””K”) of the State Government 2. Facts in brief are as under: 3. The petitioners are the owners in possession of land bearing block No.128 of village:Jahangirabad admeasuring 20740 square meters. The Surat Municipal Corporation declared its intention to make a draft Town Planning Scheme No.44 on 07.01.2000. The State Government sanctioned the draft town planning scheme under the provisions of Section 48(2) of the Gujarat Town Planing and Urban Development Act by a notification dated 15.06.2021 and the Town Planning Officer was appointed by the State Government on 23.11.2001 to make the preliminary scheme. The original area of the land was 21,550 square meters and block no.128 was renumbered as original plot no.35. It appears that the area of the original plot no.35 was shown as approximately 16,232 square meters i.e. approximately 4507 square meters less (original area 20,740 square meters). Aggrieved by the shrinkage of the original plot, the petitioners lodged their objection by a letter dated 20.06.2005 to the Town Planning Officer showing the correct area of the land in the original plot. The error continued and when the final plot no.35A was allotted, based on the area of the original plot being 16,232 square meters, after a deduction of 30%, what was allotted as final plots was Final Plot No.35A admeasuring 7493 square meters and Final Plot No.35B admeasuring 3873 square meters aggregating to approximately 13666 square meters. The petitioner again made a representation on 05.02.2013. Pursuant to this representation, the State Government directed the Chief Town Planner to make necessary inquiry and submit a report. The petitioner again made a representation on 05.02.2013. Pursuant to this representation, the State Government directed the Chief Town Planner to make necessary inquiry and submit a report. On 22.05.2013, the Town Planning Officer submitted a report stating that there is an error or discrepancy in the mentioning of the original plot. On the basis of the measurement carried out by the District Inspector of Land Records, the original area was approximately 18,211 square meters. A clarification was also sought by the Town Planning Officer on 05.04.2013 based on which the DILR, Surat, submitted a report dated 15.04.2013, stating that the area of block no.128 was 18211 square meters. A hissa mapani form no.4 also accordingly stated so. The preliminary town planning scheme was approved on 26.09.2013, without correcting the error of the original plot no.35 which according to the petitioner even based on the DILR report was 18,211 square meters and not 16,233 square meters, based on which, final plots no.35A and 35B were allotted. 4. Mr.K.K.Trivedi learned counsel for the petitioner would submit that the area of land of the original plot of the petitioners was required to be considered as that of 18,211 square meters in stead of 16,233 square meters and proportionately the area of the Final Plot ought to have been increased. 6.1 Mr.Trivedi would submit that treating the original plots’ area as 16,233 based on which, Final Plot No.35A and 35B were allotted, should be corrected by treating the original plot area to be 18,211 after deducting 30% from 18,211 square meters. He would submit that though based on the revenue record, the attention of the Town Planning Officer/State Government was drawn to this, the same has not yet been rectified, nor any measurement carried out. He would therefore submit that the error can be corrected under the provisions of Section 70 of the Town Planning Act. 6.2 Mr.Trivedi would also place reliance on the letter dated 10.09.2013 of the Chief Town Planning Officer to the Officer on Special Duty, Urban Development Department, by which, it was opined that for the additional area of Original Plot No.35 what can be considered is compensation, but the final plot area cannot be increased. To this the petitioner made the representation on 01.01.2014. The Chief Town Planning Officer wrote a letter on 07.01.2014 to the Surat Municipal Corporation, directing to examine a representation dated 01.01.2014. To this the petitioner made the representation on 01.01.2014. The Chief Town Planning Officer wrote a letter on 07.01.2014 to the Surat Municipal Corporation, directing to examine a representation dated 01.01.2014. The Chief Town Planning Officer on 06.02.2014 asked the petitioners to approach the Surat Municipal Corporation. An application was made on 19.03.2014 to make a variation to which on 19.11.2015, the Town Planning Officer wrote a letter, a copy of which was also marked to the Urban Development Department that the area of 18,211 square meters is in fact the original area of the plot but since the Town Planning Scheme is sanctioned on 27.09.2013, it is the appropriate authority which can take a decision. Though by a letter dated 23.02.2016, the Deputy Commissioner of the Surat Municipal Commissioner wrote a letter to the Town Planning Officer stating that the area of the final Plot cannot be increased, it admitted the fact that the area of land of the original plot was incorrectly recorded. 6.3 Mr.K.K.Trivedi would rely on the decision of this Court (Coram:N.V.Anjaria, J) reported in 2018 (3) GLR 1980 in case of Manilal Devjibhai Solanki v. State of Gujarat and others and submit that on a similar set of facts, the Court had held that once the documents invariably and conclusively indicated overlooking the fact of measurements of the areas, it was obligatory on the part of the Town Planning Officer to consider the objection and give effect to the total area of ownership of the petitioner in finalizing the scheme. He would also rely on the submission that though Town Planning Scheme had been subjected to the notification under Section 65(2) of the Town Planning Act, the powers were available with the State government to vary the scheme under Section 70 thereof. He would also rely on a decision of this Court in Special Civil Application No.9903 of 2008 in the case of Shamjibhai Ramjibhai Kevadia dated 12.10.2017. 5. Mr.Dhaval Nanavati learned counsel appearing for the Surat Municipal Corporation submitted that there was no error on the part of the authorities. 6. He would also rely on a decision of this Court in Special Civil Application No.9903 of 2008 in the case of Shamjibhai Ramjibhai Kevadia dated 12.10.2017. 5. Mr.Dhaval Nanavati learned counsel appearing for the Surat Municipal Corporation submitted that there was no error on the part of the authorities. 6. Mr.Meet Thakkar learned AGP appearing for the respondent no.1 would also submit on reading the communications dated 19.10.2015 of the Town Planning Officer and that of the Surat Municipal Corporation dated 23.02.2016 that there was no error in those communications inasmuch as on the notification being issued and the Preliminary Town Planning Scheme had been sanctioned, having become part of the Act, the only relief that could be available and which was granted was that they could consider payment of compensation. 7. Having considered the submissions made by the learned advocates for the respective parties and considering the representations on record, what is evident that it is the case of the petitioner that block no.128, original plot no.35 was actually admeasuring 18,211 square meters. The fact that the actual measurement of the original plot was 18,211 square meters is also evident when pursuant to a communication dated 05.04.2013 of the Town Planning Officer of the Surat Municipal Corporation of the State, on 16.04.2013, the District Inspector of Land Records addressed a letter to the Town Planning Officer vindicating the stand of the respondent based on the measurement and found that the actual area of land of the original plot was 18,211 square meters. What is to be noted is that the allotment of Final Plot Nos.35A and 35B after deduction of 30% was based on an assessment of the original area being 16,233 square meters. Accordingly, if the DILR report is to be accepted, the petitioner would be entitled to an allotment of 12,478 square meters instead of 11,366 square meters. The Hissa Form also would justify that the original area of the O.P. No.35 was 18,211 square meters. Though a notification notifying the Preliminary Town Planning Scheme was issued on 26.09.2013, what is evident is that the Town Planning Officer had addressed a letter on 10.09.2013 stating that the scheme could be varied as a result of discrepancy in the area of the original plot which was actually 18,211 square meters. However, what was then opined was that the petitioner could be paid compensation. However, what was then opined was that the petitioner could be paid compensation. The report of the Town Planning Officer dated 19.10.2015 also agrees with the report of the DILR based on the Hissa Form No.4 that there is an error in computing the area of the Original Plot based on which the Final Plot is allotted. However, it opined giving compensation. 9.1 Section 70 of the Town Planning Act has been considered by this Court in the decision in the case of Manilal Devjibhai Solanki (supra) and after having considered these provisions, what is evident on reading thereof is as under: “5.1 Noticed and recorded as above, the petitioner had submitted his representation and filed objections dated 10th March, 2010 in view of order dated 07th December, 2009 in the aforementioned Special Civil Application as permitted by the Court. The Town Planing Scheme in question was sanctioned on 12th July, 2010. Therefore, the objections were filed before the scheme came to be sanctioned. Though the petitioner had produced cogent material in form of the documents to show the correct area of the land requesting to rectify the same while drawing the preliminary scheme, it was not heeded to and the Scheme came to be sanctioned treating the land area of the petitioner lesser by 1000 sq. mtrs. 5.2 The petitioner placed on record the following documents along with the affidavit-in-rejoinder which were also produced before the Town Planning Officer. They are as under, (i) Village Form no.7/12 shows the land in question admeasuring 9904 sq. mtrs. (ii) Village No. 6, if perused, at item No.28 clearly shows that measurement before durasti is 0-34-39 and after durasti is 0-33-39, making it clear that only 100 sq.mtrs. is deducted. (iii) Hissa Form No.4 at Column No.3 clearly shows the measurement to be 9904 sq. mtrs. (iv) Order dated 02nd January, 1997 by the competent authority and the Additional Collector, Urban Land Ceiling, Surat, wherein at page 68 and 69, the measurement of the land is shown to be 9904 sq. mtrs. (v) Durasti Patrak No.14, if perused, clearly shows that the measurement of the land in question before the acquisition was A-0-34-g (column No.4) and after acquisition is A-0-33—g (Column NO.9) hence only 100 sq. mtrs. was deducted. 5.3 Though the aforesaid documents invariably and conclusively indicated that only 100 sq. mtrs. mtrs. (v) Durasti Patrak No.14, if perused, clearly shows that the measurement of the land in question before the acquisition was A-0-34-g (column No.4) and after acquisition is A-0-33—g (Column NO.9) hence only 100 sq. mtrs. was deducted. 5.3 Though the aforesaid documents invariably and conclusively indicated that only 100 sq. mtrs. of the land of the petitioner was acquired out of 9904 sq. mtrs., the Town Planing Authorities completely overlooked the said aspect and disregarded the documentary evidence. What was included in the Town Planing Scheme was the land of the petitioner as if it admeasured 8904 sq. mtrs. 5.4 It was obligatory in law on part of the Town Planing Authority to consider the objection of the petitioner submitted at the proper juncture and give effect to the total area of the ownership of the petitioner in finalizing the scheme. Having not done so, the scheme stands fraught with an error and irregularity qua the land of the petitioner is concerned. 5.5 While it may be true that the Town Planning Scheme in question came to be subjected to Notification by the State Government under Section 65(2) of the Town Planning Act to become final, even after finalisation of the Scheme, the powers are available with the State Government under the statute and a Scheme which has become final, can be varied under Section 70 of the Act for the grounds mentioned in the said provision. 5.6 Section 70 of the Town Planning Act reads as under. “70. Power to vary scheme on ground of error, irregularity or informality. - (1) If after the preliminary scheme or the final scheme has come into force, the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the scheme. (2) If on receiving such application or otherwise, the State Government is satisfied that the variation required is not substantial the State Government shall publish a draft of such variation in the prescribed manner. (3) The draft variation published under sub-section (2) shall state every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of subsection (3) of Section 40, the draft variation shall also contain such other particulars as may be prescribed. (3) The draft variation published under sub-section (2) shall state every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of subsection (3) of Section 40, the draft variation shall also contain such other particulars as may be prescribed. (4) The draft variation shall be open to the inspection of the public at the head office of the appropriate authority during office hours. (5) Within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government through the Collector and send a copy thereof to the appropriate authority. (6) After receiving the objections under subsection, the State Government may, after consulting the appropriate authority and after making such inquiry as it may think fit, by notification - (a) appoint a Town Planning Officer and thereupon the provisions of this Chapter shall, so far as may be, apply to such draft variation as if it were a draft scheme sanctioned by the State Government, or (b) make the variation with or without modification, or (c) refuse to make the variation. (7) From the date of the notification making the variation, with or without modification, such variation shall take effect as it were incorporated in the scheme.” 5.7 It is manifest from the from the provisions of Section 70 that if the Scheme is found to be defective on account of any error, irregularity or informality, the same can be varied. The power of variation can be exercised upon an application of the appropriate authority – the Area Development Authority. The Scheme can be varied on an application or otherwise by the State Government. Section 70 is a provision providing for an in-built remedy to recognise a crystal claim or right of a land holder which is disregarded in the Scheme even if the Scheme is made final and even if it is treated as part of the Act having been come into force. Variation is a statutory process permitted under the Act if the overlooking of the case, claim or right of a land owner in the Scheme is in the nature of error, irregularity or informality in the Scheme. Variation is a statutory process permitted under the Act if the overlooking of the case, claim or right of a land owner in the Scheme is in the nature of error, irregularity or informality in the Scheme. 5.8 The facts in decision of this Court in Mukundlal Trikamlal Patva vs. State of Gujarat [ 2007 (1) GLR 761 ] were inter alia that the land in that case, treated in the Town Planning Scheme was initially declared as surplus under Urban Lands (Ceiling and Regulations) Act, and thereafter the very land was allotted to one Sakina Abbas Karimi. Said Sakina sold the land by registered deed to the petitioner Mukundlal. The Town Planning Officer however ignored the registered sale deed and treated the land with its original status as if it was declared surplus. The Court held that it was a clear error in the Town Planning Scheme so finalised. The Court observed as under. “8. As per the provisions of Section 70 of the Act, even if the Scheme is finalized, there is power with the authority to consider the matter for variation of the Scheme, if the scheme is defective on account of an error, irregularity or informality. Such power can be exercised upon the application of the appropriate authority or the State Government itself can also consider the matter for variation, unless such variation is not substantial. It appears that when the exercise is under taken by the T.P. Officer while preparing the scheme on the basis that the land is declared as surplus land under the ULC Act and held by the Government, whereas in reality on the date when the Scheme was prepared the land was already allotted by the Government to the original holder of the land namely; Sakina Abbas Karimi and others and thereafter transferred to the petitioner, it would be ex facie, error in the preparation of the Scheme and its finalization thereof by the T.P. Officer. Such error has continued to remain even when the sanction came to be granted by the State Government to such scheme qua the land in question. Such error has continued to remain even when the sanction came to be granted by the State Government to such scheme qua the land in question. Therefore, it will be required for the competent authority to consider the matter for variation in the Scheme on the premise that the land was already allotted to Sakina Abbas Karimi and thereafter, was purchased by the petitioners and it was not having the status of a land as surplus land held by the Government under the ULC Act.” 5.9 The Court in Mukundlal Trikamlal (supra) further observed that when there was a mechanism provided under the Act for considering the question of variation in the preliminary or final scheme on account of an error or irregularity, the Court may not strike down the entire Scheme but it would be appropriate to direct the State Government to exercise the powers of variation. 6. Not including the total area of 9904 sq. mtrs. of the petitioner and not treating the constitution of the final plot for the petitioner in proportion to the said area of 9904 sq. mtrs., the Town Planning Authority committed a manifest error falling within the purview of Section 70 of the Act. This being an error required to be rectified, the State Government has to exercise the power of variation in the scheme qua the said aspect by accepting the ownership of the land of the petitioner to the extent of 9904 sq. mtr. of area and by reconstituting final plot of the petitioner proportionately accordingly.” 9.2 It is therefore clearly apparent that there is a discrepancy insofar as the measurements or the area of the land is concerned is evident, the competent authority under the Land Revenue Code i.e. the District Inspector of Land Records before the notification of 65(2) came in on 26.09.2013, on 15.04.2013, gave a report to the local authority i.e. Surat Municipal Corporation admitting the undisputed position that there was discrepancy in the measurements inasmuch as though the original plot was admeasuring 18,211 square meters, the allotment of the final Plot was based on the measurements being 16,233 square meters. What is therefore evident is that while issuing a notification on 25.09.2013 and framing the preliminary scheme, the final plot allotted to the petitioner vis-a-vis the original plot is based on an erroneous measurement of the area and therefore, the case squarely falls under the powers to be exercised under Section 70 of the Town Planning Act. 8. Accordingly, based on the decision of this Court in the case of Manilal (supra) the Local Authority i.e. the Surat Municipal Corporation is directed to propose to the State Government to vary the sanctioned preliminary scheme in accordance with the provisions of Section 70 of the Act. It is evident therefore that decision in case of Manilal (supra) is squarely applicable to the facts of the case. Accordingly, the Local Authority i.e. the Surat Municipal Corporation is directed to propose to the State Government to vary the scheme qua the land in question viz. Block No.128 of Village: Jahangirabad, (Town Planning Scheme No.44) based on the material placed in question especially the material regarding discrepancy in respect of the area of the land which findings have been recorded by the DILR in its report dated 15.04.2013, which have been endorsed by the Deputy Municipal Commissioner of the Surat Municipal Corporation in the communication dated 23.02.2016. The State Government shall, in turn, consider such proposal for variation within a period of three months from the date when such proposal is received from the Surat Municipal Corporation. 9. With the aforesaid observations, the petition is disposed of. 10. In view of the disposal of the main petition, Civil Application will also not survive and hence, the same is also disposed of.