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2023 DIGILAW 281 (GUJ)

Lilghar Harun Faridbhai v. State of Gujarat

2023-02-09

NIRZAR S.DESAI

body2023
ORDER : 1. Heard learned advocate Mr. Pratik Jasani for the learned advocate Mr. Kuntal A. Joshi for the petitioners. 2. By way of this petition, the petitioners have prayed for the following reliefs:- (A) YOUR LORDSHIPS be pleased to issue an appropriate writ, order or direction, quashing and setting aside the impugned order/ communication dated 16.01.2023 passed by respondent no. 4 (Annexure A) in the interest of justice; (B) Pending the admission, hearing and final disposal of this appeal, YOUR LORDSHIPS be pleased to suspend operation, execution and implementation of the impugned order/ communication dated 16.01.2023 passed by respondent no. 4 (Annexure A) in the interest of justice, (C) Pending the admission, hearing and final disposal of this appeal, YOUR LORDSHIPS be pleased to restrain the Respondents, their officers, agents and servants from taking any coercive action against the petitioners pursuant to impugned the impugned order/ communication dated 16.01.2023 passed by respondent no. 4 (Annexure A) in the interest of justice; (D) Pending the admission, hearing and final disposal of this appeal, YOUR LORDSHIPS be pleased to direct the Respondent authorities to maintain status quo prevailing as on today, in the interest of justice; (E) YOUR LORDSHIPS be pleased to grant such other and further reliefs in favour of the Petitioners as deemed fit in the interest of Justice. 3. On perusal of record, it transpires that the petitioners has challenged the order dated 16.01.2023 which is an order passed pursuant to the notice issued by Ahmedabad Municipal Corporation for implementation of Town Planning Scheme No. 85 (Vatva 5) in respect of revenue survey no. 865 + 866 for which final plot no. 97 is allotted. 4. Once the preliminary scheme was sanctioned, a notice under section 67 of the Town Planning Act was given and thereafter, a notice under section 68 r/w Rule 33 of the Town Planning Rules was issued against the petitioners against which the petitioners preferred Special Civil Application No. 6512 of 2021 which was disposed of by the Coordinate Bench vide order dated 03.10.2022 and the petitioners was granted liberty to file appropriate representation / objection / application before the Corporation Town Planning Officer of the Corporation and the authority was directed to decide the same in accordance with law keeping in mind the settled legal position. 5. 5. Till the representation was decided, the Corporation or its officer concerned was directed not to take any coercive action against the petitioners. 6. Heard learned advocate Mr. Pratik Jasani for the petitioners. At the outset, learned advocate Mr. Jasani for the petitioners disclosed that on 04.02.2023, the date on which the petitioners preferred this petition challenging the order dated 16.01.2023 whereby pursuant to the order passed by the Coordinate Bench in Special Civil Application NO. 6512 of 2021 vide order dated 03.10.2022 after hearing the petitioners, the Ahmedabad Municipal Corporation passed an order on 16.01.2023 and rejected the application / representation / objection of the petitioners. 7. The same day, the petitioner preferred a Civil Suit as well before the City Civil Court at Ahmedabad being Regular Civil Suit No. 124 of 2023 and the same is pending before City Civil Court at Ahmedabad. 8. Even after, disclosing the aforesaid fact, learned advocate Mr. Jasani insisted for hearing of this petition as the suit is preferred by only Noorbhai Ganibhai Modan whereas the petitioner is preferred by, in all, 19 persons and therefore, he insisted that the petition may be heard on merits. 9. Though the preliminary scheme has been sanctioned and for its implementation, a notice was already given under section 68 r/w Rule 33 by Ahmedabad Municipal Corporation and which was subject matter of challenge in the earlier round of litigation and though the petitioners were once again heard pursuant to the Court’s order, an order rejecting the application is passed, learned advocate Mr. Jasani made following submissions while challenging the order dated 16.01.2023. (1) According to learned advocate Mr. Pratik Jasani though preliminary scheme was sanctioned in the year 2013 at the relevant point of time, only marginal portion of the land belonging to the petitioners was deducted, however, subsequently the variation in the scheme took place and thereafter, in view of variation in the scheme, the substantial portion of the land belonging to the petitioners have been deducted. Before doing so, the petitioners were not heard at all and therefore, according to learned advocate Mr. Jasani, the aforesaid act of the authority of not putting petitioners to notice and not hearing them would amount to violation of principles of natural justice and therefore, the order based upon such variation is bad and requires to be quashed and set aside. (2) According to learned advocate Mr. Jasani, the aforesaid act of the authority of not putting petitioners to notice and not hearing them would amount to violation of principles of natural justice and therefore, the order based upon such variation is bad and requires to be quashed and set aside. (2) According to learned advocate Mr. Jasani, as per section 48 (2) of the Town Planning Act, once the draft scheme is prepared, the same is required to be sanctioned within a period of three months from the date on which the draft scheme is prepared. (3) In the instant case, according to learned advocate Mr. Jasani the draft scheme was preferred in the year 2004 and the same was sanctioned in the year 2013 and therefore, as the scheme has not been sanctioned as per the provisions of law, the petitioners are required to be protected. (4) According to learned advocate Mr. Jasani, the petitioners were not heard after this Court passed an order on 03.10.2022 in Special Civil Application No. 6512 of 2021 and the order dated 16.01.2023 is passed only on the basis of the representation of the petitioner and therefore, the impugned order is bad and deserves to be quashed and set aside. 10. Though the aforesaid submissions were made when a specific query was put to learned advocate Mr. Jasani that though repeatedly he refers to variation while making the submissions where is any averments or details or notice about variation in Town Planning Scheme No. 85 (Vatva 5), learned advocate Mr. Jasani could not show anything from the record which indicates that the aforesaid submissions about variation in the scheme was without putting the petitioners to the notice and such contention is absolutely baseless and without there being any material in support of the aforesaid submissions. 11. When learned advocate Mr. Jasani for the petitioners could not point out anything about the variation of the preliminary scheme which is already sanctioned, if variation has not been taken place, the question of putting the petitioners to notice or hearing them would not arise and therefore, the aforesaid submissions in absence of any material in support of the aforesaid submissions cannot be accepted. 12. Learned advocate Mr. Jasani further contended that the petitioners were not heard. That submission also does not have any basis. 12. Learned advocate Mr. Jasani further contended that the petitioners were not heard. That submission also does not have any basis. Earlier when the petitioners approach this Court by way of Special Civil Application No. 6512 of 2021, in paragraphs no. 3, 4 and 5 of the order passed by the Coordinate Bench, the Coordinate Bench observed as under:- “3. Learned advocate for the petitioners has submitted that the petitioners are the small shop keepers and they are doing their own petty business and maintain their livelihood. He has relied upon the decision of this Court in the case of Sunilbhai Natvarbhai Patel Versus State of Gujarat reported 2011 (2) GCD 1200 and in the case of Kishanbhai Hargovandas Patel Versus State of Gujarat reported in 2010 (4) GLR 2867 and prays that if the Court is not inclined to grant relief to the petitioners, in the alternative, he prayed to give the opportunity of being raising an objection and/or making a representation / application to the petitioners before the respondent - Corporation and the respondent - Corporation may be directed to decide the same in accordance with law, as early as possible. 4. Per contra, Mr. Deep Vyas, learned advocate for the Corporation has submitted that in view of the decision of this Court in the case of Kanjibhai Dahyabhai Malsattar Versus State of Gujarat reported in 2005 (2) GLH 515 , once the T.P. Scheme has become final, the occupants have no right to continue on the land in question. He has submitted that in absence of any challenge to the T.P. Scheme at the relevant point of time, the notice under Section 68 of the Act cannot be challenged thereafer. He has relied upon the another decision of the Hon’ble Court Supreme Court of India in the case of Babulal Badriprasad Verma Versus Surat Municipal Corporation reported (2008) 12 SCC 401 and has submitted that waiver of rights which debares the persons who have disentitled from obtaining equitable reliefs. At no stage, the petitioners have raised objection qua the T.P. Scheme. 5. However, he has submitted that if appropriate direction is given to the petitioners to make fresh representation / objection / application before the Corporation, the Corporation will consider the same in accordance with law by keeping in mind the settled legal provisions.” 13. At no stage, the petitioners have raised objection qua the T.P. Scheme. 5. However, he has submitted that if appropriate direction is given to the petitioners to make fresh representation / objection / application before the Corporation, the Corporation will consider the same in accordance with law by keeping in mind the settled legal provisions.” 13. Subject matter of challenge in that petition was notice dated 18.01.2021 issued by the Corporation under section 68 of the Town Planning Act as well as under Rule 33 of the Town Planning Rules. 14. In view of the aforesaid challenge in Special Civil Application No. 6512 of 2021, when the Coordinate Bench recorded the submissions of the petitioners, the Coordinate Bench specifically observed that it was submitted by the learned advocate for the petitioners that if the Court is not inclined to grant relief to the petitioners in the alternative, he prayed to give an opportunity of raising objection/ representation/ application to the petitioner before the respondent – Corporation and respondent – Corporation may be directed to decide the same in accordance with law. 15. Pursuant to that, the Court recorded the submissions made by the learned advocate for the petitioners in paragraph no. 5 of the order and thereafter, paragraphs no. 7, 9 and 10 made following observations:- “7. After considering the various submissions made by the learned advocates for the respective parties, it transpires that the T.P. Scheme is already sanctioned by the Authorities and now, in view of the provisions of Section 65(3) of the T.P. Act, it has become part of the Act. However, it is open for the petitioners to file appropriate objection / representation / application before the Corporation / Town Planning Officer of the Corporation, within two weeks from today. 9. If such objection / representation / application will be made by the petitioners, the Corporation / Town Planning Officer of the Corporation shall decide the same, in accordance with law and after keeping in mind the settled legal position as well as considering the record available with them, as early as possible, but preferably within a period of six weeks from the date of receipt of the same by the petitioners. 10. In view of above observation and direction, the present petition is disposed of. Interim relief granted earlier by this Court stands vacated.” 16. 10. In view of above observation and direction, the present petition is disposed of. Interim relief granted earlier by this Court stands vacated.” 16. A reading of the aforesaid observations made by the Coordinate Bench would indicate that all that the petitioners wanted was a decision upon the objection / representation / application made by that the petitioners may make. Accordingly, the Corporation considered the same and passed an order on 16.01.2023. When the direction was not in respect of granting any opportunity to the petitioners, it is not expected that the Corporation shall call the petitioners and hear them. The petitioner’s limited prayer before the Coordinate Bench in earlier round of litigation was only to the extent of considering the representation. The representation has duly been considered by the Ahmedabad Municipal Corporation and therefore, at this juncture, the petitioner cannot take any grievance about the fact that they were not heard. Accordingly, the aforesaid submission made by learned advocate Mr. Jasani also cannot be accepted. 17. As far as the submission made by learned advocate Mr. Jasani about the time limit prescribed under section 48 (2) of Town Planning Act prescribing the time limit of three months is concerned, it seems that after having failed everywhere till today, as a last resource, technical objection is raised by the petitioners. 18. A query was put to learned advocate Mr. Jasani to show from the record that at any point of time any objection was raised in respect of delay in sanctioning the preliminary Town Planning Scheme. 19. Learned advocate Mr. Jasani could not show anything from the record that at any point of time, it was brought to the notice of the authority that authority was bound to sanction within a period of three months in view of the statutory provision as submitted by learned advocate Mr. Jasani. When a person who is affected who has been heard time and again which can be seen from the notices produced by himself of the year 2017, a reference about the year 2021 notice and subsequently, about the objections or representation made by the petitioner in the year 2021 is there on record when despite availing all the opportunities if the petitioner has not raised any objection about the delay, it is not open for the petitioners to raise the delay to the ground of the delay at the stage of implementation. 20. There are catena of decisions by the Hon’ble Supreme Court as well as by this Court that once the preliminary scheme is sanctioned, the same becomes an Act and therefore, at the stage of implementation, scope of interference by this Court is very limited. The aforesaid settled principle of law could not be disputed by learned advocate Mr. Jasani. 21. This Court does not find any substance in the aforesaid submission as well. 22. Considering the fact that it is on petitioners’ request to direct the authority to consider their application / objection / representation at the time when Special Civil Application No. 6512 of 2021 was decided an order dated 03.10.2022 was passed if the authority has considered the objections or representation made by the petitioners and passed a detailed order, the same cannot be a basis for the petitioners to obstruct the implementation of the Town Planning Scheme. Further, on perusal of order impugned in this petition dated 16.01.2023, this Court finds that the order impugned is a well reasoned order and in the said order, the objections or representation made by petitioners have been considered and thereafter, a reasoned order is passed. 23. In view of above, I do not see any reason to interfere with the order dated 16.01.2023 passed by the Deputy Town Planning Officer, South Zone and the petition is required to be dismissed and the same is dismissed accordingly.