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2021 DIGILAW 990 (GUJ)

RAMANLAL AMRUTLAL PATEL v. STATE OF GUJARAT

2021-10-25

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs :- “(A) To stay the operation, implementation and execution of the impugned notice dated 18/06/2021 at Annexure – F issued by the Ahmedabad Municipal Corporation and impugned order dated 20/09/2021 at Annexure – I passed by the Town Planing Officer, (B) Be pleased to permanently restrain the respondent authorities to take possession of land of petitioners bearing survey No.1081, Original Plot No.294 admeasuring 2125 sq. mt, without handing over the possession of Final Plot No.294 admeasuring 1275 sq. mt., which was allotted to petitioners under the Scheme.” 2. The background of facts which has given rise to filing of the petition is that the petitioners are the owners and occupiers of land bearing survey No.1081 situated in the sim of Village Shilaj, Taluka Ghatlodia, District Ahmedabad. The aforesaid land of the petitioners was included in the Draft Town Planning Scheme bearing No. 405/Shilaj/Ambali under the provisions of the Gujarat Town Planning and Development Act, 1976. The land bearing survey No. 1081 admeasuring 2125 sq. mtrs. was allotted final plot at some other place having final plot No. 294 admeasuring 1275 sq. mtrs. as 40% of land was deduced in the scheme. Earlier, according to the petitioners, 20 meters was carved out from the land of the petitioners for the purpose of widening of the road, but now, the Corporation is further widening the road from 20 meters to 40 meters, by virtue of which, the entire land appears to have been covered on the issue of widening of the road. According to the petitioners, there are other 43 survey numbers which are also covered for the purpose of widening of the road which is clear from the letter of Ahmedabad Urban Development Authority dated 08.05.2010, by which, it was informed in general to all 44 owners of the land that their lands are required for the purpose of widening of the road. The State Government, by virtue of notification dated 25.10.2017, was pleased to sanction the Draft Town Planning Scheme and pursuant to it, notice has been issued on 18.06.2021 and the State Government has sanctioned the Draft Town Planning Scheme under Section 48(2) of the Town Planing Act and as such, notice was issued calling upon the petitioners to hand over the possession within a period of 10 days. 2.1 The petitioners have indicated in the petition that the petitioners have replied to the said notice, raising an objection on 28.06.2021 mainly contending that unless and until the possession of final plot allotted to the petitioners is given, the authority has no right to take away the possession of the land belonging to the petitioners as this is the only land belonged to all the petitioners and as such, they have requested the authority to hand over the possession of final plot which has been allotted to the petitioners first in point of time. It has further been submitted that the petitioners are ready and willing to hand over the possession of their portion of survey No. 1081, moment the final plot would be allotted to them and to that effect, the writing has also been given on 30.07.2021. But some how, the authority has passed an order on 20.09.2021 directing the petitioners to hand over the possession within a period of seven days. As a result of this, left with no other alternative, the petitioners have submitted this petition with the reliefs as indicated herein above. 3. Learned advocate Mr. Jitendra Patel appearing on behalf of the petitioners has raised two fold submissions. Firstly, it is submitted that the possession is normally to be simultaneously handed over and as such, so long as final plot which has been allotted to the petitioners is given, there is no right of the respondent authority to take away the possession of the existing land belonging to the petitioners. Secondly, it has been submitted that as many as 44 persons are affected by virtue of such kind of action of the respondent authority. Learned advocate Mr. Patel has further submitted that the respondent authority has picked up the petitioners first in point of time and as such, the discriminatory treatment is meted out to the petitioners and therefore, the action is not fair on the part of the respondent authority. But, learned advocate Mr. Learned advocate Mr. Patel has further submitted that the respondent authority has picked up the petitioners first in point of time and as such, the discriminatory treatment is meted out to the petitioners and therefore, the action is not fair on the part of the respondent authority. But, learned advocate Mr. Patel has candidly submitted that the Draft Town Planning Scheme has already been sanctioned by the authority by virtue of Section 48(2) of the Act. No further submissions have been made. 4. At this stage, learned advocate Mr. Deep Vyas appearing on behalf of the respondent authority on advance copy being served has submitted that the authority has extended adequate opportunity to the petitioners and after considering every circumstance, in the best interest of justice, the order is passed on 20.09.2021. According to him, looking to the circumstances which are mentioned in the petition and in the order itself, there is hardly any reason available for the petitioners to assail the order. It is submitted that these petitioners have been given adequate opportunity of hearing and explaining their circumstances, in which, petitioner No.2 has already appeared before the authority and submitted the respective representations and that has been considered in view of public interest which is reflecting in an order. It is submitted that the direction is given to hand over the possession and as such, this is in complete consonance of principles of natural justice and in compliance of the statutory provisions of the Town Planning Act. Ultimately, it is submitted that no merit is visible from the petition and hence, the petition be dismissed. 4.1 At this stage, learned advocate Mr. Vyas has submitted that the grievance which has been voiced out that only the petitioners have been singled out, is not true and in fact, all the affected land holders are being given such kind of instructions in the order and as such, the said grievance is of no avail to get the relief which has been sought in the petition. Learned advocate Mr. Vyas has further submitted that this issue is squarely covered by series of decisions delivered by this Court. Following are the decisions relied upon by learned advocate Mr. Learned advocate Mr. Vyas has further submitted that this issue is squarely covered by series of decisions delivered by this Court. Following are the decisions relied upon by learned advocate Mr. Vyas to substantiate that there is no merit in the petition :- (I) Order dated 18.07.2018 passed in group of petitions headed by Special Civil Application No. 15298 of 2017 (II) Decision delivered by the Division Bench of this Court reported in 2016 (3) GLR 2694. (III) Decision delivered by the Division Bench of this Court dated 06.04.2010 passed in Letters Patent Appeal No. 2213 of 2009 (IV) AIR 2005 Gujarat 200 4.2 After referring to these decisions, learned advocate Mr. Vyas has submitted that this petition is not entertain able and accordingly, the same be dismissed. 5. Having heard learned advocates for the respective parties and having gone through the material on record, following circumstances are not possible to be unnoticed by the Court. 5.1 From the record, it appears that the petitioners have been given adequate opportunity to represent their case in the personal hearing and other submissions which had been made have been considered by the authority and then, the authority passed an order on 20.09.2021 and as such, the decision making process is not possible to be treated as suffering from any vice of non application of mind or with perversity and when this decision making process is just and proper and fair and reasonable opportunity to the petitioners, there is hardly any circumstance available to substitute the finding on the basis of very same material. At the outset, it appears that undisputably, the Draft Town Planning Scheme has already been sanctioned by the State Authority. Even as per the case of the petitioners, the only grievance is that the final plot which has been allotted is not physically given to the petitioners and the notification about sanctioning the Draft Town Planing Scheme is also way back on 25.10.2017 and as such, once the Draft Town Planing Scheme is accorded sanction, necessary consequences may follow. So far as the road widening issue is concerned, the grievance raised is that instead of 20 meters, now 40 meters road has to be carved out across the land of the petitioners. So far as the road widening issue is concerned, the grievance raised is that instead of 20 meters, now 40 meters road has to be carved out across the land of the petitioners. But for that purpose, the issue of widening of the road is not to be examined by this Court under Article 226 of the Constitution of India and it is on different parameters for which the authority has to arrive at a conclusion. Further, the Division Bench of this Court has clearly observed that what should be the width of the road is not to be looked into either by the Court or by the petitioner to agitate. The said decision reported in 2016 (3) GLR 2694 since is relevant, the observations contained in paragraphs 3.4 and 3.6 are reproduced hereunder :- “[3.4] Now, so far as the submission on behalf of the petitioners that there is no justification of having 36 meter road as the present road, which is available, cater the needs of the traffic is concerned, it is not either for the petitioners and/or even for the Court to consider whether there is any justification of having 36 meter road or not. Whether there is a need of 36 meter road or not is left to the wisdom of the expert body and the appropriate Authority considering the public interest. [3.6] Now, so far as the submission on behalf of the petitioners that no speaking/reasoned order has been passed is concerned, on considering the impugned orders it cannot be said that the impugned orders deserve to be quashed and set aside on the aforesaid ground. The objections raised by the petitioners have been considered and thereafter the impugned orders are passed which, as observed hereinabove, are absolutely in consonance with the provisions of the Town Planning Act and Town Planning Rules more particularly sections 48-A, 67, 68 and Rule 33.” 5.2 Yet another decision which is clinching to the issue is that as to whether without allotting the final plot, it is open for the authority to ask the petitioners to hand over the possession of the existing land. This very issue has been dealt with by the Coordinate Bench of this Court in group of petitions headed by Special Civil Application No.15298 of 2017 decided on 18.07.2018 and since it is relevant to the issue present in petition, the Court deems it appropriate to reproduce paragraphs 6, 9, 11 and 12 as under :- “6. The bone of the contention raised by the learned advocates for the petitioners is that the respondent No.2Corporation could not ask the petitioners to handover the possession of the lands in question, without simultaneously handing over the possession of the final plots proposed to be allotted to the petitioners under the sanctioned D raft Town Planning Scheme. They have relied upon the decision of this Court in the case of Amarsinh Shanaji Thakore Vs. State of Gujarat, reported in 2004 (7) GLH 127, and an unreported decision in Special Civil Application No.982 of 1991, as well as of the Supreme Court in the case of The Municipal Corporation for Greater Bombay and Anr. Vs. The Advance Builders (India) Pvt. Ltd. and Ors., reported in AIR 1972 SC 793 to submit that the authorities under the Town Planning Act are bound to implement the Town Planning Scheme and handover the peaceful and vacant possession of the final plots allotted to the persons under he said scheme. They have also submitted that the Corporation is required to remove even the unauthorised construction, if found on the land allotted to the petitioners before handing over the possession of the same to the petitioners. 9. In the instant case, it appears that the subject lands have been earmarked for laying out roads, drainage, water supply etc. in the Draft Town Planning Scheme No.86 and that the petitioners/occupiers are sought to be evicted from the subject lands by the Corporation for the said purposes in exercise of the powers conferred under section 48A of the said Act. It is not in dispute that the purposes shown in the Draft Town Planning Scheme are the purposes covered under section 40(3) of the said Act. It is also not in dispute that the Draft Town Planning Scheme has already been sanctioned by the State Government under section 48(2) of the said Act and the Town Planning Officer has also been appointed under the said Act for implementation of the said Scheme. It is also not in dispute that the Draft Town Planning Scheme has already been sanctioned by the State Government under section 48(2) of the said Act and the Town Planning Officer has also been appointed under the said Act for implementation of the said Scheme. So far as the provisions contained in section 48A are concerned, the same may be reproduced as under: “48-A. Vesting of land in appropriate authority- (1) Where a draft scheme has been sanctioned by the State Government under subsection (2) of Section 48, (hereinafter in this section, referred to as `the sanctioned draft scheme’), all lands required by the appropriate authority for the purposes specified in clause (c),(f),(g) or (h) of subsection (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances. (2) Nothing in sub-section(1) shall affect any right of the owner of the land vesting in the appropriate authority under that subsection. (3) The provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme as if,- (i) sanctioned draft scheme were a preliminary scheme, and (ii) in sub-section (1), for the words “comes into force”, the words, brackets and figures “the date on which the draft scheme is sanctioned under subsection(2) of Section 48” were substituted.]” 11. In view of the above, there remains no shadow of doubt that where the draft scheme has been sanctioned by the Government, the lands required for the purposes specified in the clauses (c), (f), (g) or (h) of Section 40(3) would automatically vest in the appropriate authorityas per Section 48(A) and that the person, who is not entitled to occupy the land under the sanctioned draft scheme can be summarily evicted under section 48A(3) of the said Act, on the analogy of the provisions contained in section 68 of the Act read with Rule 33 of the Rules. When the Statutory vesting takes place as contemplated in Section 48A(1) of the said Act, the petitioners could not insist that they should be simultaneously handed over possession of the final plots proposed to be allotted to them under the Draft Scheme, before they are evicted from the subject lands. The purposes mentioned in Clauses (c), (f), (g) and (h) of Section 40(3) are the public utility services, and therefore the statutory vesting under Section 48A(1) of the lands earmarked for such purposes is automatic. The purposes mentioned in Clauses (c), (f), (g) and (h) of Section 40(3) are the public utility services, and therefore the statutory vesting under Section 48A(1) of the lands earmarked for such purposes is automatic. It is axiomatic that salus populi suprema lex that regard be had to be public welfare, is the highest law. The respondent authorities have sought to exercise their powers under section 48A(3) read with section 68 and Rule 33 after following due process of law and after giving reasonable opportunity of hearing to the all concerned including the petitioners. Hence, it could not be said that the respondent no.2 Corporation has acted arbitrarily or without any authority of law while issuing impugned notices and passing the impugned orders. 12. The Court therefore does not find any substance in the petition. However, it is expected that the Town Planning Officer shall expedite the process of finalizing the Town Planning Scheme, and handover the vacant and peaceful possession of the final plots proposed to be allotted to the legal owners or occupiers as the case may be.” 5.3 So, from the above situation which is prevailing, the grievance voiced out by the petitioners is not possible to be acceded to by the Court. Hence, the contentions raised by learned advocate Mr. Patel are not of any assistance to the petitioners. Accordingly, the petition deserves to be dismissed. At this stage, the grievance raised by the petitioners is that they are singled out and other several affected persons have not been dealt with at all. In view of the submission of learned advocate Mr. Vyas on instructions that they have also been served with similar kind of notices and therefore, the point of discriminatory treatment is not available to the petitioners. Hence, in view of aforesaid circumstances which are prevailing on record and in view of the order passed at length, there is hardly any case made out by the petitioners to call for any interference. Hence, the petition is dismissed with no order as to the cost. 6. However, at this stage, the Court would like to observe that the authority shall see to it that the possession of the allotted final plot to the petitioners be made available at the earliest without any undue delay.