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2025 DIGILAW 1234 (GUJ)

Bhagyalakshmi Housing Society v. State of Gujarat

2025-11-07

D.N.RAY, SUNITA AGARWAL

body2025
ORDER : (PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) 1. Having heard learned counsels for the parties and perused the record, pertinent is to note that this intra Court appeal arises out of the judgment and order dated 19.09.2025 passed by the learned Single Judge in dismissing the writ petition refusing to interfere with the order dated 02.12.2022 passed by the Chief Town Planning officer, as also the order dated 09.01.2024 passed by the Nagarpalika. 2. The dispute in the writ petition was pertaining to the Town Planning Scheme namely T.P. Scheme No.1 (Bilimora -Desra). 3. The original petitioners–appellant herein claims to be a society which was formed in the year 1992 for the purposes of development of the land which is Revenue Survey No.485/1, part of the Town Planning Scheme in the year 1992. 4. As per the statement made in the writ petition, in lieu of Revenue Survey No.485/1 owned by the petitioner No.1– Society, Final Plot no. 72/A and 72/B admeasuring 8205 sq. mtrs. and Final Plot no.72/C admeasuring 8086 sq. mtrs., were allotted to the Society. Pertinent as to note that the petitioner No.1 is an unregistered Society. 5. It seems that the land in question was developed after seeking permission of the Collector to convert it into the Non- Agricultural Land and the said permission was granted on 13.04.1992. The record indicates that the draft Town Planning Scheme was notified on 16.10.1992 under the Town Planning Act, 1976 with an appointment of the Town Planning Officer by the State Government. The proceedings for preparation of preliminary scheme was initiated. The order impugned dated 02.12.2022 passed by the Chief Town Planning Officer categorically records that as per the comment submitted by the Town Planning Officer, during the course of preparation of the Preliminary Town Planning Scheme as per Section 52 of the Act, 1976, the objections were invited by sending individual notices to the agreed persons. It is recorded therein that in the initial notice dated 13.03.1995, the date fixed for hearing of the objections was 22.03.1995. However, the land holders of the land in question remained absent. It is recorded therein that in the initial notice dated 13.03.1995, the date fixed for hearing of the objections was 22.03.1995. However, the land holders of the land in question remained absent. Again pursuant to the notice dated 22.02.1999, on the date fixed i.e. 25.02.1999, the petitioners submitted their objections pertaining to carving out of road but no objection was taken about the reservation, though objections were invited both for the road and reservations made from the plot in question under the Town Planning Scheme. 6. The order impugned further records that the Town Planning Officer had again issued a notice on 18.06.2005 inviting individual objections of the land holders including the petitioners herein intimating the date fixed as 27.06.2005, however, the petitioners remained absent. Again, a public notice dated 27.06.2005 was issued, but the petitioners-land holders remained absent to agitate their grievances. On 05.03.2010, for the first time, after two years, the President of the petitioner - Society along with 10 members remained present with the Town Planning Officer to agitate their grievances. 7. The Town Planning Officer during preparation of the Town Planning Scheme made consultation with the State Government as also the local authority in the year 2012 – 2013. The Preliminary Town Planning Scheme prepared by the Town Planning Officer was forwarded to the State Government on 01.08.2014 after consideration of various objections raised by the land holders – persons affected by the Preliminary Scheme and it was finally sanctioned and notified under Section 67 of the Town Planning Act on 27.05.2019. 8. The Preliminary Town Planning Scheme prepared by the Town Planning Officer was forwarded to the State Government on 01.08.2014 after consideration of various objections raised by the land holders – persons affected by the Preliminary Scheme and it was finally sanctioned and notified under Section 67 of the Town Planning Act on 27.05.2019. 8. Pertinent is to note that, at no stage of the proceedings of preparation of the Preliminary Town Planning Scheme or after notification thereof vide notification dated 27.05.2009, the petitioners–Society or its members raised any objection or approached any Court of law raising the grievances, which were sought to be raised for the first time in the writ petition filed in 2022 namely the Special Civil Application No. 2973 of 2022 which has been disposed of vide judgment and order dated 05.05.2022 in the following manner:- “[1] This petition is filed by the petitioners under Article 226 of the Constitution of India for following relief:- “ xxxxx (iii) hold and declare that action on the part of respondent Nos.1, 3 and 10 in not considering the representation of the petitioners to vary Town Planning Scheme Billimora No.1(Billimora-Desra) as illegal, unjust and further may be pleased to direct the said respondents to immediately consider an decide the representations of the petitioners for variation of the said Town Planning Scheme under Section 70 of the Act;” xxxxx” [2] The Civil Application is filed by the affected parties as in view of the order passed by this Court dated 11.02.2022, the private respondents are being affected. According to the private respondents, the implementation of the town planning scheme has proceeded further and as a result of which, the plot in question identified as common plot of Bhagyalaxmi Housing Society is with the respondents. [3] At joint request of the parties and considering the submission of the petitioners that the application of the petitioners under Section 70 of the Town Planning Act is filed and pending before the Chief Town Planning Officer may be considered in accordance with law and as per the time table fixed by this Court. [3] At joint request of the parties and considering the submission of the petitioners that the application of the petitioners under Section 70 of the Town Planning Act is filed and pending before the Chief Town Planning Officer may be considered in accordance with law and as per the time table fixed by this Court. [4] As it is submitted jointly, the Court without entering into the merits of the case, proposes to dispose of this petition with a direction that the application under Section 70 of the Town Planning Act now pending before the Chief Town Planning Officer may be considered in accordance with law and after giving an opportunity of hearing to both the petitioners as well as respondent Nos.4 to 9. Both the parties, shall co-operate with the proceedings and hence, the Chief Town Planning Officer may dispose of the application under Section 70 of the Act within a period of six weeks from today. [5] At this stage, learned advocate for the petitioners, under the instructions, states that he represents the interest of all the occupants of Bhagyalaxmi Housing Society and in that connection, all the members will file an undertaking before the Chief Town Planning Officer in that regard. The parties are directed to maintain status-quo till the decision of the Chief Town Planning Officer. [6] With the aforesaid direction, the petition stands disposed of.In view of the order passed in the main matter, no order is required to be passed in Civil Application and hence, stands disposed of accordingly. Direct service is permitted.” 9. The copy of the said writ petition though is not on record but it is submitted by the learned counsel for the petitioners that the said writ petition was filed virtually for the same relief, i.e. seeking a direction for consideration of the claim of the petitioners for variation of the Town Planning Scheme under Section 70 of the Town Planning Act, 1976. 10. The order impugned dated 02.12.2022 had been passed under the direction issued by this Court vide judgment and order dated 05.05.2022 in the aforesaid writ petition i.e., Special Civil Application No. 2973 of 2022 filed by the petitioners. 11. 10. The order impugned dated 02.12.2022 had been passed under the direction issued by this Court vide judgment and order dated 05.05.2022 in the aforesaid writ petition i.e., Special Civil Application No. 2973 of 2022 filed by the petitioners. 11. It is, thus, evident that for the first time in the year 2022, after a period of three years of the publication of the sanctioned Preliminary Scheme by the State Government vide Notification dated 27.05.2009, the petitioners have approached the writ Court raising an issue seeking for variation of the Town Planning Scheme. 12. Be that as it may, the order impugned categorically records that the petitioners have failed to raise any objection to the reservations made from the plot in question namely Revenue Survey No. 485/1, which was alloted as Final Plot No. 72/A, 72/E and 72/C in favour of the petitioners – Society and its member. The fact remains that the Priliminary Town Planning Scheme has attained finality with the sanction made by the State Government and has become a part of the Act. The petitioners have not challenged the Town Planning Scheme at any stage of preparation thereof and there is no challenge to the scheme itself in the writ petition. The only question subject matter of consideration before the learned Single Judge in the writ petition, out of which the present appeal was arisen, was as to whether the Chief Town Planning Officer has committed any error in rejection of the application/representation made by the petitioners seeking for variation of the Town Planning Scheme under Section 70 of the Act, 1976 vide order dated 02.12.2022. 13. Considering the above, we may firstly note the provisions of Section 70 of the Act, 1976, which 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. (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 sub-section (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 sub-section (5), 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 if it were incorporated in the scheme.” 14. A bare reading of the provisions of Section 70 of the Town Planning Act, 1976 indicates that as per the procedure for variation of the preliminary scheme or the final scheme provided therein, once the scheme has come into force, it is well within the jurisdiction of the appropriate authority namely the local authority to move for variation of the Town Planning Scheme, both of the preliminary scheme or the final scheme. If the scheme is defective on account of any error, irregularity or informality. Upon receipt of such application, if any, the State Government if satisfied may proceed to publish the draft variation. If the scheme is defective on account of any error, irregularity or informality. Upon receipt of such application, if any, the State Government if satisfied may proceed to publish the draft variation. Upon publication of draft variation for the inspection of the public at large, any person affected by the draft variation may communicate his objections in writing to the State Government through the Collector. Upon receiving such objections, the State Government after consultation with the appropriate authority may make such inquiry as it may deem fit and for such inquiry it may appoint a Town Planning Officer and, thereafter, the proviso(s) of the Chapter V will apply to such draft variation as if it were the draft scheme sanctioned by the State Government. It is open for the State Government to make variation with or without notification or refuse to make the variation thereafter. 15. Taking note of the aforesaid scheme of Section 70 the Act, 1976, it is evident that variation of the Town Planning Scheme cannot be claimed as a matter of right by the land holder or the person affected therefrom. The right to file objections has been conferred to the land holder at the stage of preparation of the Preliminary Scheme under the provisions of Section 52 of the Act, 1976. At the relevant point of time, no objections admittedly were filed. It is for this reason, the order impugned records that it is not possible for the Chief Town Planning Officer to make any variation in the Town Planning Scheme as demanded by the petitioners. Moreover, the Chief Town Planing Officer at the same time recorded that it is still open for the the State Government to make any variation in accordance with the provisions of Section 70 of the Act, 1976. 16. It goes without saying that it is also open for the local authority to apply for variation in accordance with the provisions of the Section 70 of the Town Planing Act, 1976 before the State Government, and such proposal, if any, has to be dealt with in accordance with the procedure provided therein. 17. Challenging the order dated 02.12.2022 passed by the Chief Town Planning Officer, the submissions of the learned Counsel for the original petitioners-appellant are threefolds. 17. Challenging the order dated 02.12.2022 passed by the Chief Town Planning Officer, the submissions of the learned Counsel for the original petitioners-appellant are threefolds. It was firstly argued that once this Court vide judgment and order dated 05.05.2022, in the previous round had issued directions to the Chief Town Planing Officer to deal with the objections raised by the petitioners by providing opportuity of hearing. It was, thus, not open for the Chief Town Planning Officer to say that he had no jurisdiction to make variation in the Town Planing Scheme. 17.1 The second limb of submission is that the proper hearing has not been afforded to the petitioners, inasmuch as, on the date fixed, i.e. 04.11.2022, the petitioners had asked for certain documents which were provided with the understanding that a fresh date would be fixed for hearing. However, without affording further hearing by fixing another date, all of a sudden the order dated 02.12.2022 was passed by the Town Planing Officer. 17.2 It is lastly submitted that the Chief Town Planning Officer has passed the order impugned dated 02.12.2022 referring to the report of the Town Planning Officer dated 31.05.2022, which was never been provided to the petitioners. The submission, thus, is that the Chief Town Planning Officer had passed an order impugned behind the the back of the petitioners and for this reason alone, the said order cannot be sustained. The contention, thus, is that the right of hearing afforded to the petitioners seeking variation of the Town Planning Scheme under Section 70 of the Town Planning Act as per the directions of this Court in the judgment and order dated 05.05.2022 has been curtailed with the order impugned passed by the Chief Town Plannig Officer. 17.3 It is further submitted that under the Scheme of Section 70 of the Town Planning Act, the State Government is empowered to make variation in the Scheme, a liberty, as such, be granted to the petitioners to approach the State Government seeking for variation of the Scheme with the directions that the request of the petitioners be considered after affording due opportunity of hearing. 18. Mr. 18. Mr. Kaushal D.Pandya, learned Counsel appearing for the respondent-Nagarpalika however, referring to the observations made in the order dated 02.12.2022, would submit that no exception can be taken to the observations made by the Chief Town Plannig Officer in rejection of the representation made by the petitioners. The fact remains that the petitioners have not been able to dispute any of the findings in the order impugned on the comments supplied by the Town Planning Officer, with regard to the dates fixed inviting the objections of the land holders during the course of the preparation of the Town Planning Scheme and the fact that the petitioners remained absent throughout. With regard to the contention of the learned Counsel for the petitioners that the petitioners were not afforded due opportunity of hearing and a subsequent date was required to be fixed by the Chief Town Plannig Officer, it is submitted that the said contentions are bereft of merits, in asmuchas, the order impugned categorically records the name of the persons who remained present during the course of hearing which included the petitioners herein. 18.1 Mr. Kaushal D. Pandya, learned counsel appearing for the respondent-Nagarpalika has relied upon the decisions of this Court in Savitaben Chaturbhai Patel Vs. State of Gujarat reported in 2009 (0) AIJEL-HC-222772 and in the case of Savitaben Chaturbhai Patel & 1 Vs. State of Gujarat passed in Letters Patent Appeal No. 238 of 2010 with Civil Application No.1467 of 2010 to substantiate his submissions. 18.2 Further, relying upon the observations made in the judgment and order dated 29.03.2010 passed by the Division Bench of this Court in Letters Patent Appeal No.238 of 2010 wherein, similar position with regard to the objections raised after Notification of the Preliminary Town Planning Scheme was considered, would place on the observations made in Paragraph Nos. 5, 6 and 7 therein. It was argued that right from the beginning of the stage of publication of the draft Town Planning Scheme till the stage of the Preliminary Town Planning Scheme being sanctioned by the Government, the landholders-appellants herein had raised no objections. At that stage, the appellants had sufficient notice and opportunity to raise objections if they were aggrieved by the draft Scheme or the Preliminary Scheme. At that stage, the appellants had sufficient notice and opportunity to raise objections if they were aggrieved by the draft Scheme or the Preliminary Scheme. After sanction of the Preliminary Town Planning Scheme with the Notification under Section 65 issued by the State Government, no directions may be by this Court asking the respondent- authorities to vary the Scheme under Section 70 of the Town Planning Act. Reliance is placed upon the provision of Section 65(3) of the Town Planning Act, 1976 which reads as under :- “Section 65:- Power of Government to sanction the Scheme and effect of sanction. (3)On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act.” 18.3 It is submitted that with the sanction of the Preliminary Town Planning Scheme, by the Notification of the State Government, once it has become part of the Act and has to be given effect as if it were enacted in the Town Planning Act itself, it is not possible nor permissible for the local authority to move a proposal for variation of the Town Planning Scheme on the asking of one person. The variation under Town Planning Scheme is a major issue which may affect other allottees as well, inasmuch as, any variation at such a belated stage would lead to a chain reaction. 18.4 It is further argued that in so far as the variation under Section 70 of the Town Planing Act, 1976 is concerned, the local authority may make a proposal for variation thereof but in a limited circumstances where there is any defect in the scheme on account of an error, irregularity or informality. Under the entire scheme of the Town Planning Act, it is not possible for the local authority namely the Nagarpalika to make a proposal for variation at the instance of one person, i.e. the petitioners herein who remained silent from the stage of the draft Scheme till the sanction of the Preliminary Town Planning Scheme. Reliance is placed on decisions of this Court in the case of Kartik Mohanbhai Patel Vs. State of Gujarat through Secretary and Ors. reported in 2011 LawSuit (Guj.) 390; in the case of Nagarjuna Construction Co.Ltd. Vs. Govt. Reliance is placed on decisions of this Court in the case of Kartik Mohanbhai Patel Vs. State of Gujarat through Secretary and Ors. reported in 2011 LawSuit (Guj.) 390; in the case of Nagarjuna Construction Co.Ltd. Vs. Govt. of Andhra Pradesh reported in 2008 LawSuit (SC) 1525 and in the case of Kranti Associates Pvt. Ltd. and Anr. Vs. Masood Ahmed Khan & Others reported in 2010 LawSuit (SC) 587. 19. Considering the above, suffice it to say that considering the material on record and the rival submissions of the learned Counsels for the parties, we do not find any error in the opinion drawn by the learned Single Judge. The learned Single Judge while dealing with the case of the petitioners categorically records the facts noted by us hereinbefore to deal with the contention of the learned Counsel for the petitioners that mere sanction of the Preliminary Town Planning Scheme would not extinguish the right of the petitioners to seek variation under Section 70 of the Town Planning Act. It is rightly held by the learned Single Judge that though Section 70 of the Act provides for variation after sanction of the Preliminary Town Planning Scheme, but the petitioners cannot claim variation as a matter of right. The subjective satisfaction of the Town Planning Authority to send the proposal for variation is required. In so far as any independent application made before the State Government under Section 70 of the Town Planning Act, the scope of judicial review is limited. The writ Court in execise of power under Article 226 of the Consitution of India cannot act as an Appellate Authority over the decision of the Town Planning Officer of the State Authority, as the case may be. It is also recorded by the learned Single Judge that the deductions pursuant to Town Planning Scheme appears to have been done as per the provisions of the Act and no discrimination could be found between the petitioners and the private respondents. 20. The assertions of the learned Counsel for the petitioners that the order impugned dated 02.12.2022 has been passed behind the back of the petitioners is not substantiated from any relevant material on record. 20. The assertions of the learned Counsel for the petitioners that the order impugned dated 02.12.2022 has been passed behind the back of the petitioners is not substantiated from any relevant material on record. There is no reason for us to take any exception to the findings returned by the Chief Town Planning Officer in the order impugned when there is no challenge to the observations made therein with regard to the fact that the petitioners did not raise any objection to the Prelimiary Town Planning Scheme at the stage of its preparation inspite of issuance of notice calling for objections by the Town Planning Officer. 21. In so far as the submissions of the learned Counsel for the petitioners with regard to the validity of the order dated 09.01.2024 passed by the Nagarpalika under the interim directions issued by the writ Court is concerned, suffice it to record that there was no occasion for the Nagarpalika to pass any detailed order dealing with all points of objections raised by the petitioners as it is not within the jurisdiction of the Nagarpalika to deal with any of the objections pertaining to the reservation made by the Town Planning Officer under the Prelimiary Town Planning Scheme. The reservations under the Prelimiary Town Planning Scheme were proposed by the Town Planning Officer under the Scheme of the Act and the role of the Nagarpalika after sanction of the draft Town Planning Scheme becomes advisory. At the stage of preparation of the Preliminary Town Planning Scheme, the objections were required to be raised before the Town Planning Officer and the Nagarpalika or the local authority has no power to deal with any of such objections. 22. Further, the reasoning given by Nagarpalika in the order impugned dated 09.01.2024 is that there is no error, irregularity or informality in the Town Planning Scheme and further, in case, the variation as demanded is proposed, it will disturb the whole Town Planning Scheme, as it would affect a large number of allottees of the Final Plots settled under the Prelimiary Town Planning Scheme. 23. Both the aforesaid reasons assigned by the Nagarpalika are in the spirit of the Scheme of the Town Planning Act as noted from Section 70 thereof, and hence call for no further scrutiny. 24. 23. Both the aforesaid reasons assigned by the Nagarpalika are in the spirit of the Scheme of the Town Planning Act as noted from Section 70 thereof, and hence call for no further scrutiny. 24. For the above, we do not find any error in the decision of the Chief Town Planning officer dated 02.12.2022 as also the order passed by the Nagarpalika dated 09.01.2024. No error can be attached to the reasoning given by the learned Single Judge in the judgment impugned for dismissal of the writ petition. The present appeal is accordingly, dismissed being devoid of any merits. No order as to costs. Consequently, the connceted Civil Application stands disposed of.