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2022 DIGILAW 70 (GUJ)

Dayiben Hirabhai Singhav v. State of Gujarat

2022-01-12

ALPESH Y.KOGJE

body2022
JUDGMENT : Alpesh Y. Kogje, J. 1. This petition under Article 226 of the Constitution of India is filed praying, inter alia, for quashing and setting the action of the respondent-Corporation to specify the street line without providing an opportunity of hearing to the petitioners. It also prays for directions to respondent-Corporation to decide the representation made by the petitioners in that regard on 08.10.2015. 2. Learned advocate for the petitioners submits that the petitioners, who are owners and occupiers of plots which the petitioners came in possession of from the original owner by way of registered sale-deed and were assigned House Nos. 5845 and 5855 which was in the record of the respondent-Corporation. 3. It is the case of the petitioners that for the purpose of expansion of various roads in Rajkot, the authorities undertake the procedure for taking over the lands required for the road widening. The aforesaid house numbers of the petitioners fell on the road widening of the road being Bhavnagar Saint Kabir Road. 4. Learned advocate for the petitioners has taken this Court through various documents to indicate that admittedly the petitioners were the owners and occupiers of the aforesaid house numbers and though initially the entries on the basis of registered sale-deed were challenged by the respondent-Corporation itself before the Collector, the same was in favour of the petitioners, and therefore, the petitioners are now the owners and occupiers and having all the interest in the aforesaid house numbers. 5. Learned advocate for the petitioners has submitted that when the expansion of the road was undertaken, the respondent-Corporation has to act as per the provisions of Gujarat Municipal Corporation Act, more particularly Section 210 of the Act and Section 210 clearly provides for a right to be heard to the affected parties. 6. Reliance is placed upon the decision of Hon'ble Division Bench of this Court in case of K.V. Shelat v. Municipal Corporation of City of Ahmedabad & Anr., reported in 2009 (1) G.L.H 13 to indicate that the principles of natural justice is an inherent in the provisions of Section 210(1-A) of the Act especially for the citizens, who are adversely, affected. 7. 7. It is submitted that the immediate neighbor of the petitioners bearing House No. 5854 was served with such notice under Section 210 of the Act, whereas the petitioners have not been served with any such notice, and therefore, the action of the respondent-Corporation is against the provisions of the Act and is required to be set aside. 8. It is submitted that pending the petition, the respondent-Corporation has proceeded to put up the road as per the Scheme, however, such action has to be treated as in breach of the provisions of the Municipal Corporation Act, and therefore, appropriate directions are required to be issued. 9. As against this, the learned advocate Mr. Munshaw referring to his affidavit-in-reply submitted that the fact that petitioners are owner of the portion of the land which is utilized for the purpose of road widening is highly disputed. It is submitted that the revenue record does not indicate the petitioners to be the owners, and therefore, the names of the petitioners are not reflected in Form-F which the respondent-Corporation relies upon, and therefore, the names of the petitioners do not reflect in the Form-F, whereas the name of neighbor does reflect, and therefore, the notice came to be issued. 10. Learned advocate for the respondent-Corporation has submitted that it cannot be said that the petitioners were not put to the notice when the land was taken over for the purpose of road and has drawn attention of this Court to Annexure-F to his affidavit-in-reply dated 24.10.2015, wherein the notice has been issued to the petitioners in terms of the provisions of the Town Planning Scheme, and therefore, when the petitioners were called upon to reply, the petitioners have chosen not to reply, but to file the present petition. 11. In any case, the learned advocate for the respondent-Corporation has submitted that now, the road is laid on, and therefore, no relief can be granted in favour of the present petitioners, however, if any grievance is to be redressed, the same has to be redressed in accordance with law, if the petitioners approach the respondent-Corporation. 12. 11. In any case, the learned advocate for the respondent-Corporation has submitted that now, the road is laid on, and therefore, no relief can be granted in favour of the present petitioners, however, if any grievance is to be redressed, the same has to be redressed in accordance with law, if the petitioners approach the respondent-Corporation. 12. As against contention of the learned advocate for the respondent-Corporation that the petitioner not being the owners of the house numbers mentioned in the preceding paragraphs, the learned advocate for the petitioners has once again drawn the attention of this Court to the documents which indicate that the entry of the petitioners was certified, objected by the respondent-Corporation by filing a revision application, but having failed, and therefore, the respondent-Corporation cannot take "U" turn and claim that the petitioners are not owners. 13. It is further submitted that, as stated by the learned advocate for the respondent-Corporation that the petitioners' names are not reflected in Form F, thereby, presuming that the petitioners are not the owner of the proper cannot be countenest in view of the notice issued by the respondent-Corporation itself and relied upon by the respondent which is at Annexure-F dated 24.10.2015. Hence, also, the respondent-Corporation need not to be accepted. 14. Heard the learned advocates for the parties and having perused the documents on record. At the outset, it appears that the petitioners have mixed two independent proceedings, which are involved in the road widening of Bhavnagar to Saint Kabir Road where the properties of the petitioners as well as their neighbor are situated. Firstly the reference is required to be made to the Town Planning Scheme which is now final. The possession of the petitioners having House Nos. 5845 and 5855 were already the part of the Town Planning Scheme No. 8 and the Draft Town Planning Scheme No. 8 of Rajkot was sanctioned by the State Government through a notification dated 25.02.1982. Accordingly, the Town Planning officer was appointed and as per the procedure of the Act, a sanctioned preliminary Town Planning Scheme No. 8 of Rajkot was notified under a notification dated 29.03.1990. 15. Learned advocate for the petitioners confused the Court between the action undertaken under the provisions of BPMC Act and the Gujarat Town Planning Act. Accordingly, the Town Planning officer was appointed and as per the procedure of the Act, a sanctioned preliminary Town Planning Scheme No. 8 of Rajkot was notified under a notification dated 29.03.1990. 15. Learned advocate for the petitioners confused the Court between the action undertaken under the provisions of BPMC Act and the Gujarat Town Planning Act. He contends that the action sought to have taken under the B.P.M.C Act, whereas, in fact, considering the finalization of the T.P. Scheme, the respondent-Corporation has acted as per the provisions of the T.P. Scheme. 16. It appears that after the notice dated 27.06.1996, the Final Town Planning Scheme No. 8 of Rajkot received the information from the State Government and i.e. how the T.P. Scheme has now been finalized. It appears that the petitioners are trying to indicate the land in question referred to by them as situated "in line of Public Street" but as such the facts are altogether different and the land in question is entered within the Town Planning Scheme for the purpose of road/chowk and, therefore, require to be deducted. The General Board of Rajkot Municipal Corporation has passed a resolution no. 75 on 17.10.2015 with regard to Sant Kabir Road. The Sant Kabir Road is with regard to Bhavnagar road to Final Plot No. 300 of Town Planning Scheme No. 8. The land in question referred to by the petitioners have been owned by them is a part of the said road/chowk and, therefore, by them is a part of the said road/chowk and, therefore, requires to be taken over as per the provisions of the Scheme for the implementation of the Scheme and public purpose. The petitioners have not produced any documentary evidence with regard to ownership of the properties referred to by them. Irrespective of the ownership of the land and non production of relevant documents, the issue is with regard to implementation of the Town Planning Scheme No. 8 of Rajkot as a Preliminary Town Planning Scheme is sanctioned on 27.06.1990 and the final Town Planning Scheme is sanctioned on 27.06.1990. The House No. 5845 and 5855 referred to by the petitioners are situated on the said Sant Kabir Road. 17. The House No. 5845 and 5855 referred to by the petitioners are situated on the said Sant Kabir Road. 17. It also appears that, if the reference is made to the Town Planning Scheme No. 8 of Rajkot, was already existed 25 mtrs road as a Town Planning Road, and therefore, a notice is issued to the petitioners on 24.10.2015 which indicates that the land admeasuring 141.01 Sqr. Mtrs. which was in possession of the petitioners was a part of the T.P. Road/Chowk and which was sought to be taken over by resorting to the provisions of Town Planning Act. 18. In view of the aforesaid, obviously, the land in question would not be the land which is required to be acted upon under the provisions of Section 210 of the B.P.M.C Act, and therefore, the stand of the petitioners with regard to right of hearing, as provided for under Section 210 of the B.P.M.C Act may not be accepted. 19. The reliance placed upon by the learned advocate for the petitioners on the decision of the Division Bench of this Court also pertains to the notices of eviction of road widening under Section 210 of the B.P.M.C. Act. When it has come on record that the part of land of the petitioner bearing House Nos. 5845 and 5855 were already a part of the T.P. Scheme which attained finality and become part of the Act, the ration of decision reported in 2009 (1) G.L.H 13 would not come to the rescue of the petitioners. 20. In view of the aforesaid reasoning, no interference is required at this stage. Hence, the present petition stands dismissed.