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2022 DIGILAW 20 (GUJ)

NIRMALABEN PRANJIVAN BHAGAT v. STATE OF GUJARAT

2022-01-05

BIREN VAISHNAV

body2022
JUDGMENT : 1. RULE. Mr.Meet Thakkar learned AGP waives service of Rule for respondent No.1 and Mr.Kaushal Pandya learned advocate waives service of Rule for respondent nos.2 to 5. 2. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for the following relief: “(A) Your Lordships may be pleased to admit and allow this petition; (B) Your Lordships may be pleased to appropriate writ, order or direction to declare the action of respondents in attempting to cause demolition in or upon the land bearing survey no 17 (Original Plot No 13) as per the sanctioned Preliminary Town Planning Scheme No 24 (Tunki) Final Plot No 22, 28 and 29, Katargam, Surat as illegal, arbitrary, against the principles of natural justice and dehors the provisions of Gujarat Town Planning and Urban Development Act; (C) Your Lordships may be pleased to appropriate writ, order or direction to restrain the respondents from causing any demolition in the land bearing survey no 17 (Original Plot No 13) as per the sanctioned Preliminary Town Planning Scheme No 24 (Tunki) Final Plot No 22, 28 and 29, Katargam, Surat. (D) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to maintain the status-quo with respect to the land bearing survey no 17 (Original Plot No 13) as per the sanctioned Preliminary Town Planning Scheme No 24 (Tunki) Final Plot No.22, 28 and 29, Katargam, Surat; And further be pleased to direct the respondents to maintain status-quo with respect tot eh approach road which is being used by the petitioner since last about 40 years.” 3. Facts in brief are as under: 3.1 It is the case of the petitioner that he along with one Shri Ramanlal Dahyabhai Patel entered into a partnership deed in the name and style of M/s.P.B.Processing. Vide the partnership deed, Shri Dahyabhai Patel has brought land bearing Revenue Survey No.18 admeasuring 24,648 sq.meters into the partnership. A cloth processing unit was established on the land. Subsequently Mr.Patel resigned from the partnership and according to the petitioner for more than three decades now the petitioner is running the industrial unit of cloth processing upon the plot. 3.2 A Preliminary Town Planning Scheme No.24 was sanctioned by the State of Gujarat vide notification dated 18.05.2012. A cloth processing unit was established on the land. Subsequently Mr.Patel resigned from the partnership and according to the petitioner for more than three decades now the petitioner is running the industrial unit of cloth processing upon the plot. 3.2 A Preliminary Town Planning Scheme No.24 was sanctioned by the State of Gujarat vide notification dated 18.05.2012. According to the petitioner, a notice was issued on 10.05.2019 by the Executive Engineer, North Zone (Katargam), Surat Municipal Corporation under Section 67 of the Town Planning and Urban Development Act, whereby, it was conveyed that land bearing survey no.17 (original plot no.13 which was owned by the petitioner) was allotted Final Plot nos.22, 28 and 29. As per the notice, the petitioner was asked to hand over the possession of Original Plot No.13. The petitioner challenged the said notice by filing Special Civil Application No.9682 of 2019 wherein initially by an order dated 17.05.2019, status-quo was granted. However subsequently vide an order dated 01.07.2019, the Special Civil Application was disposed of in view of the instructions from one Mr.Vatsal Gamit, Assistant Engineer that the Surat Municipal Corporation does not want to proceed with the notice dated 10.05.2019. According to the petitioner without any fresh notice nor any demarcation of land of the property of the petitioner, the respondents on 06.10.2020, demolished the compound wall of the petitioner’s structure and hence, the prayers. 4. Mr.Mehul Shah learned Senior Advocate appearing with Mr.Arpit Kapadia made the following submissions: 4.1 Relying on the map at page 67 which was the part plan of the draft T.P.Scheme, Mr.Shah would submit that the petitioner’s factory was on the original plot no.14 and there was a road on the original plot no.13 by virtue of which, the petitioner had rights of ingress to his original plot no.14 which was subsequently granted Final Plot no.25. He would submit that if the same is compared with page 68 part plan of the preliminary scheme of Surat, the original plot no.13 which has now become part of the final plot no.28, the dotted portion of the road which had ingress to the original plot 14/final plot 25 of the petitioner has been shifted to a 9 meter road at a distance from the plot of the petitioner. He would submit that there was no reservation in the original plot no.13. He would submit that there was no reservation in the original plot no.13. 4.2 Drawing the attention of the Court to the order passed by this Court dated 01.07.2019 wherein, a statement was made by the Corporation that a fresh notice will be issued, Mr.Shah would submit that for demolishing the wall on the periphery of the petitioner’s original plot no.18 (original plot no.14), no notice has been given and without following the procedures under Section 68 of the Act, the demolition has taken place. 4.3. Mr.Shah would further submit that even otherwise, if pages 67 of the draft scheme is compared with that of the preliminary scheme, the road which was shown on the final plot no.28 which marked and was an ingress to the petitioner’s property as shown in the draft plan, was not in the part preliminary plan at page 68 inasmuch as, the road was shown at a distance and what was envisaged now was that the original plot 13 which is final plot no.28 was to be used for the school. This was a variation in the intention of the Town Planning Scheme which was without following the procedure under Section 65 of the Town Planning Act. 4.4 Mr.Shah relying on the provisions of Section 52 of the Town Planning Act, would submit that the proviso to Section 52 would indicate that if the Town Planning Officer has to vary a scheme from the Draft Scheme and if such variation is of a substantial nature, the owners have a right to object. Mr.Shah would submit that when specifically a road in terms of the dotted line shown in the final plot no.28 in the draft plan was shifted at a distance and original plot 28 was to be used by the Corporation for the school, the petitioner ought to have been given an opportunity of hearing. In support of his submissions that the petitioner ought to be heard, Mr.Shah relied on the following decisions: (I) In case of M/s. Babubhai & Co. and others v. State of Gujarat and Ors. reported in AIR 1985 SC 613 (II) In case of Usha Agarwal v. Union of India and Others reported in (2007) 1 SCC 295 He would rely on paras 9 to 12 thereof. 4.5 He would submit that the action of the Corporation was de-hors the provisions of law. and others v. State of Gujarat and Ors. reported in AIR 1985 SC 613 (II) In case of Usha Agarwal v. Union of India and Others reported in (2007) 1 SCC 295 He would rely on paras 9 to 12 thereof. 4.5 He would submit that the action of the Corporation was de-hors the provisions of law. Reliance was also placed on the decision of this Court in case of Babubhai Maganbhai Desai v. Ahmedabad Municipal Corporation reported in 2019 (1) GLR 797 . Reliance was placed on paras 7 and 8 to submit that when there is a variation in the scheme, no action can be taken without issuing notices to the owners. He would submit that now that the scheme has been reconstituted and the plots redetermined, persons who continued to occupy the land, cannot be summarily evicted without following the procedure under Section 68 of the Act. 4.6 Reliance was also placed on the decision in case of Municipal Corporation v. Chelaram reported in AIR 1997 SC 31 wherein, according to Mr.Shah, the judgment in the case of Babubhai Maganbhai Desai (supra) was relied upon. 5. Mr.Kaushal Pandya learned counsel for the Surat Municipal Corporation would rely on the prayers made in the petition and submit that the prayer is concerned with survey no.17 (original plot no.13) whereas, if the F-Form which is produced is perused, it would indicate that as far as survey no.17 was concerned, it was not of the ownership of the petitioners. Drawing the attention of the F-form at page 68 he would submit that admittedly the ownership of the petitioner was in the revenue survey no.18 which was original plot no.13 and was allotted final plot no.25. As compared thereto, the redistribution statement as far as original plot no.13 was concerned on revenue survey no.17, Final Plot Nos.22, 28 and 29 were allotted in lieu of original plot no.13 where the name of the owner was the Surat Municipal Corporation to be used for cattle breeding. Admittedly therefore the prayers in context were for the original plot no.13 of Revenue survey No.17 which was not owned by the petitioners at all. 5.1 He would further submit by inviting attention of this Court to the orders passed in the earlier Special Civil Application, that the notice of 10.05.2019 was issued by mistake under the misconception that the plots was owned by the petitioners. 5.1 He would further submit by inviting attention of this Court to the orders passed in the earlier Special Civil Application, that the notice of 10.05.2019 was issued by mistake under the misconception that the plots was owned by the petitioners. Hence, a statement was made that the notice is withdrawn. 5.2 There is no variation as far as the scheme as conceived by the petitioner. What is only sought to be done is the Final Plot No.28 is to be used for the purposes it was reserved for i.e. for constructing a school. As a result of that, a nine meter road has been constructed at a distance from that of the petitioner’s plot which has ingressed to the petitioner’s plot and therefore it cannot be said that there is a variation. Reliance placed by the petitioner, according to Mr.Pandya provisions of Section 68 and the failure to notice and the variation being substantial as canvassed by relying on Section 58 is misconceived according to Mr.Pandya. There is no variation and in fact, admittedly it was the petitioner who had demolished the part of the construction which was falling on the boundary wall of final plot no.28 / original plot no.13. 6. Having considered the submissions made by the learned advocates for the respective parties, it will be relevant to see the redistribution statements of the Preliminary Scheme – Form-F. The petitioner, one of the 26 members, is shown as the owner of revenue survey no.18 and original plot no.14. The remarks indicate that the rights of the owners in the final plot shall be in proportion of their share in the original plot. Form-F in context of original plot no.13 at Revenue Survey No.17 would indicate the name of the owner as Surat Municipal Corporation for cattle breeding and the Final Plots are 22, 28 and 29. Admittedly therefore the petitioner is not the owner of the original plot no.13/revenue survey no.17 / Final Plot Nos.22, 28 and 29. 7. What is evident from reading Form-F in context of Original Plot No.13 and Original Plot no.14, is that the prayer of the petitioner in context of Original Plot No.13-Revenue Survey No.17 is misconceived as the plot admittedly does not belong to the petitioner. 7. What is evident from reading Form-F in context of Original Plot No.13 and Original Plot no.14, is that the prayer of the petitioner in context of Original Plot No.13-Revenue Survey No.17 is misconceived as the plot admittedly does not belong to the petitioner. The said Form-F is reproduced as under: FORM-F THE GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT ACT-1976 (SEE RULE 21 & 35) TOWN PLANNING SCHEME SURAT NO. 24(TUNKI) PRELIMINARY SCHEME REDISTRIBUTION STATEMENT S. No. Case No. Name of the Owner Tenure R.S.No /CTS No. Original Plot Final Plot Remarks No. No. Area in Sq. Mts. No Area in Sq. Mts (1) (1a) (2) (3) (3a) (4) (5) (6) (7) (8) 15 15 SMC FOR CATTLE BREEDING 17 13 8802 22 28 29 3537 3287 596 7422 1.Part of the buildings are affected by T.P.proposals but compensation is not proposed as said portion is constructed without permission either in margin or in full. 16 16 1. Partners Of Ms.P.B.Processors Nirmalaben Pranjivan Bhagat 2. Diwaliben Bachubhai 3.Rekha Harishkumar 4.Jayashree Maheshchandra 5. Gita Ashvinkumar 7. Partners Of Shri Reshma Textiles Champak Ratilal Jayshree Shashikant 7. Harish Dalpatram Vinod Dalpatram Ashvin Dalpatram 8. Kamini Vinodchandra 9.Hansa Harishchandra 10. Shashikant Champaklal Baman Nirmala Champaklal Baman 11. Dinesh Hiralal 12. Umarji Ibrahim Patel 13. Pravin Harkishan 14. Hitesh Kantilal 15. Chandrika Pravin 16. Ramesh Zaverbhai 17. Rajendra Sakarlal Ashok Sakarlal Kirit Sakarlal 18. Partners Of Laxmi Textiles 18 14 24787 -25 23296 1. Rights of owners in Final Plot shall be in proportion to their share in Original Plot. 8. To contend therefore that as an owner, if there is any variation, the proviso to Section 52 would entitle a notice, is misconceived. 9. Even otherwise, what is evident is that there appears to be no substantial variation as canvassed by Mr.Mehul Shah by relying on the maps at page 67 and 68 respectively. Original Plot No.13, Final Plot Nos.22, 28 and 29, especially that of Final Plot no.28 was even otherwise reserved for the purposes of the Surat Municipal Corporation. 9. Even otherwise, what is evident is that there appears to be no substantial variation as canvassed by Mr.Mehul Shah by relying on the maps at page 67 and 68 respectively. Original Plot No.13, Final Plot Nos.22, 28 and 29, especially that of Final Plot no.28 was even otherwise reserved for the purposes of the Surat Municipal Corporation. In accordance with the intention of the reservation, while resolution dated 22.01.2021 the Corporation has decided to construct a primary school on its own Final Plot No.28, it cannot be said that merely because an access to the petitioner’s original plot no.14 through the plot of the land belonging to the Surat Municipal Corporation is obstructed, relying on the paragraph 13 of the affidavit in reply, the petitioner would have a right to notice. In fact, unfolding of facts would reveal that since the final plot no.28 which has been carved out from the original plot no.13 which was allotted to the Surat Municipal Corporation, certain encroachments were made as a boundary wall was constructed by the petitioner on his final plot and which the petitioner himself demolished by taking over possession of the Final Plot No.25. Therefore, it cannot be said that once Original Plot No.13 which was Final Plot No.28 which was otherwise in the Corporation’s ownership, taking over possession thereof would not amount to violation of the procedures under Section 52 read with Section 68 when admittedly the petitioner was not the owner of the plots in question. 10. The reliance placed on the judgments therefore by Mr.Mehul Shah would be misconceived. 11. Therefore what is evident is that since the Corporation was allotted the Final Plot Nos.22, 28 and 29 of Revenue Survey No.17 / Original Plot No.13 and before the scheme, the petitioner had access from the original plot no.13 to enter upon his plot, merely because of this right of access has been changed to the access through a nine meter T.P. road at a little distance, cannot be made a tool by the petitioner for invoking the Section 52 read with Section 68 of the Act. 12. For the aforesaid reasons, the petition stands dismissed and the interim relief granted by this Court stands vacated forthwith. Rule is discharged. BIREN VAISHNAV, J. FURTHER ORDER After the above judgment is pronounced, Mr.Arpit Kapadia learned advocate for the petitioner requested for the stay of this judgment. 12. For the aforesaid reasons, the petition stands dismissed and the interim relief granted by this Court stands vacated forthwith. Rule is discharged. BIREN VAISHNAV, J. FURTHER ORDER After the above judgment is pronounced, Mr.Arpit Kapadia learned advocate for the petitioner requested for the stay of this judgment. The request is rejected.