Gujarat High Court
Manoj Rasiklal Shah vs State Of Gujarat on 17 April, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/SCA/21780/2022 CAV JUDGMENT DATED: 17/04/2025
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Reserved On : 01/10/2024
Pronounced On : 17/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21780 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 19030 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22104 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22693 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 24962 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 18142 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
================================================================
Approved for Reporting Yes No
Yes
================================================================
MANOJ RASIKLAL SHAH & ORS.
Versus
STATE OF GUJARAT & ORS.
================================================================
Appearance in Special Civil Application no.21780 of 2022:
MR MIHIR H. JOSHI, Senior Counsel with MR AMAR D MITHANI(484) for the
Petitioner(s) No. 1,2,2.1,2.2
MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH
RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2,3
MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the
Respondent(s) No. 4
MR SHUSHIL R SHUKLA(5603) for the Respondent(s) No. 7
MRS VASAVDATTA BHATT(193) for the Respondent(s) No. 5
MR MITUL K. SHELAT with MS DISHA N NANAVATY(2957) for the
Respondent(s) No. 6
================================================================
Appearance in Special Civil Application no.19030 of 2022:
MR MIHIR H. JOSHI, Senior Counsel WITH MR AMAR D MITHANI(484) for
the Petitioner(s) No. 1
MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH
RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2,3
MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the
Respondent(s) No. 4Page 1 of 130
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================================================================
Appearance in Special Civil Application no.22104 of 2022:
MR RASHESH S. SANJANWALA, Senior Counsel with MR MRUGEN K
PUROHIT(1224) for the Petitioner(s) No. 1,2,3,4,5
MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH
RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2
MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the
Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 3
===============================================================
Appearance in Special Civil Application no.22693 of 2022:
ADITYA R PARIKH(8769) for the Petitioner(s) No. 1
ADVOCATE NAME DELETED for the Respondent(s) No. 2
MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH
RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2,3
MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the
Respondent(s) No. 4
===============================================================
Appearance in Special Civil Application no.24962 of 2022:
MR RASHESH S. SANJANWALA, Senior Counsel with MR. AADIT R
SANJANWALA(9918) for the Petitioner(s) No. 1,2,3,4,5,6,7
ADVOCATE NAME DELETED for the Respondent(s) No. 2
MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH
RAMI, Assistant Government Pleader for the Respondent(s) No. 1,2,3
MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the
Respondent(s) No. 4
================================================================
Appearance in Special Civil Application no.18142 of 2021:
MR MITUL K. SHELAT WITH MS DISHA N NANAVATY(2957) for the
Petitioner(s) No. 1,2
MS MANISHA L. SHAH, Additional Advocate General with MR SIDDHARTH
RAMI, Assistant Government Pleader for the Respondent(s) No. 2
MR PRASHANT G. DESAI, Senior Counsel with MR RUTUL P. DESAI for the
Respondent(s) No. 1
================================================================CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
COMMON CAV JUDGMENT
1. The petitioners in all the writ petitions are aggrieved by the
actions and decisions of the Town Planning Officer, inter alia, on the
ground that without considering or dealing with the objections of the
petitioners, the decisions have been taken, causing seriousPage 2 of 130
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prejudice to the petitioners qua their immovable properties. Since
the issue and grievances raised are almost common, revolving
around the decision of the Town Planning Officer taken while
preparing the Preliminary Town Planning Scheme no.67 (Hansol)
(hereinafter referred to as “the preliminary TP scheme”), all the writ
petitions, with the consent of the learned counsel appearing in the
matters, are being disposed of by this common CAV judgment.
2. Re: Details of the writ petitions; factual aspects contained
therein; challenge and the prayers in crisp, are set out hereinbelow:
(i) Writ petition being Special Civil Application no.21780
of 2022 – Manoj Rasiklal Shah Through the Power of
Attorney Pourus Rustom Mehta & Others vs. State of Gujarat
& OthersFactual Aspects:
3. Petition pertains to the petitioners’ land bearing Plot no.E/1 of
survey no.298, Hansol, Taluka Asarva admeasuring 2540 sq. yards.
As per the Draft Town Planning Scheme (hereinafter referred to as
“the draft TP scheme”), the land admeasuring 2540 sq. yards was
given Final plot no.58/4 admeasuring 1435 sq. mtrs.
3.1 The petitioners were put in possession of the land wherein,
the petitioners got license to store compressed gas and cylinders
(LPG cylinders) in the name and style of “Malhar Gas Services” c/o.
Manoj R. Shah. According to the petitioners, godown for storage of
gas cylinders was constructed as per the plans sanctioned by the
competent authority somewhere in the year 1984 when the land
was not forming part of the Corporation area. Construction was
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made as per the plans and is standing even today. According to the
petitioners, on 13.06.1995, the land owner Shri Babubhai
Trikambhai executed an Agreement to Sell of the land in favour of
the petitioners, followed by a registered Sale Deed dated
18.11.1999. As the land is situated within the Cantonment area,
apropos the objection raised by the Indian Army, the gas godown,
was shifted at some other place. It is the further case of the
petitioners that somewhere in the year 1987, all plot holders of
survey no.298 have jointly executed the agreement on a stamp
paper and it was agreed to keep approach roads of survey no.298
open and without any interruption. The draft TP scheme was
sanctioned on 16.09.2004 wherein, survey no.298 was given original
plot and Final Plot nos.58/1, 58/2, 58/3/1, 58/3/2, 58/4, 58/5, 58/6.
The petitioners have been given Final Plot no.58/4 i.e. Plot no.E/1.
The Town Planning Officer came to be appointed in the year 2005.
Notices were issued, objections were raised;however; Town Planning
Officer without considering the objections has taken the decisions.
The petitioners being aggrieved, have filed the captioned writ
petition.
Challenge and Prayers:
a) Direction is sought to the respondent authorities and more
particularly, the Town Planning Officer to allot a separate final plot
and consider the common road area of survey number as holding of
all plot holders under the provisions of the Gujarat Town Planning
and Urban Development Act, 1976 (hereinafter referred to as “the
Act of 1976” ), with respect to land bearing revenue survey no.298,
Hansol (hereinafter referred to as “the land in question”).
b) Prayer is also prayed for seeking mandamus restraining the
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respondent no.1 – State of Gujarat (hereinafter referred to as “the
State”) from granting sanction to the preliminary TP scheme as
prepared and submitted by the Town Planning Officer.
(ii) Writ petition being Special Civil Application no.19030
of 2022 – Pourus Rustom Mehta vs. State of Gujarat &
OthersFactual aspects:
4. The petition pertains to the petitioner’s land bearing plot no.E/
2 of survey no.298 (Hansol) admeasuring 990 sq. mtrs., Taluka
Asarva. As per the draft TP scheme, plot no.E/2, was given original
plot no.58/5 and final plot no.58/5.
4.1 The grievance of the petitioner, is that as per the draft TP
Scheme, the land bearing survey no.298 of Hansol was given six
original plot numbers being original plot nos.58/1 to 58/6 specifying
the area of the final plot. The draft TP scheme was sanctioned.
Earlier existing road leading to the petitioner’s residence i.e. plot
no.E/2, was cancelled and instead a narrow 5 meter road cutting the
margins of the petitioner’s house and almost touching his
constructed house was proposed. It is the case of the petitioner that
the margins of the petitioner’s house were being deducted only to
provide access to final plot no.58/3 which otherwise already had an
access from another proposed road. This led to the filing of the
objection. The petitioner also approached this Court in the year
2008. This Court, vide order dated 16.12.2009 in Special Civil
Application no.1231 of 2008 was pleased to permit the petitioner to
file an objection before the Town Planning Officer and the Town
Planning Officer was directed to consider the same while preparing
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the preliminary TP scheme. According to the petitioner, he has
made various representations. It is thereafter, that a notice was
issued by the Town Planning Officer to all the plot holders of land
bearing survey no.298 of Hansol. The petitioner and others
remained present before the Town Planning Officer and made
various submissions. The grievance of the petitioner was that there
is no road leading to the petitioner’s plot which response is shown in
the tentative reconstitutional proposal. Also, it was pointed out that
proposed 12 meter T.P. road has been superimposed on the certain
part of the common road of the survey no.298 and if the road is
extended by few meters on the common road, the petitioner can
have an access to his plot.
4.2 Grievance is also raised that the shape of the plot is not
correctly reflected so also the boundary is missing on one side and it
is merged with the land of the adjoining plot holder of E/3. The Town
Planning Officer appears to have insisted for Hissa Mapni sheet and
the authenticated Hissa Form no.11A from the office of District
Inspector of Land Records. Application appears to have been made
seeking Hissa Mapni; followed by exchange of correspondence
between the petitioner and the concerned office. During the
process, the petitioner has received the notice through his
neighbour, issued by the Town Planning Officer, calling for the
objections and suggestions before declaration of the award. The
apprehension of the petitioner, is that the proposed preliminary TP
scheme prepared has been sent to the State Government and the
petitioner is not provided with the copies of the part plan. Hence,
the captioned writ petition.
Challenge and Prayers:
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a) Direction, inter alia, is sought for to the Town Planning Officer
to reflect the existing approved standing constructions, actual shape
and boundary of plot in its record and to provide for the sufficiently
wide road leading to the petitioners residence. Also, allot the
separate final plot and consider common road area of survey no.298
as holding of all the plot holders under the provisions of Act of 1976.
(iii) Writ petition being Special Civil Application no.22104
of 2022 – Rustomji Kaikhushru Mehta & Others vs. State of
Gujarat & Others.
Factual Aspects:
5. The petition pertains to the land bearing survey no.294,
295/1, 296, 298 and 316 situated at village Hansol. The petitioners
are having residential premises over the land bearing revenue
survey no.296 and survey no.298. Whereas, factory premises of the
petitioners is situated in revenue survey no.294 and 316. The other
lands of petitioner are being vacant as of today.
5.1 As per the draft TP scheme, the land bearing revenue survey
no.298 paiki has been given different original plot no.58/3
admeasuring 11559 sq. mtrs. and final plot no.58/3/1 and 58/3/2
admeasuring 8092 sq. mtrs. The land bearing survey no.316
admeasuring 7689 sq. mtrs., where the petitioners’ factory is
situated has been given original plot no.48 admeasuring about 7689
sq. mtrs. and final plot no.48 admeasuring about 5382 sq. mtrs. The
case of the petitioners is that the petitioners have regularized built
up factory over the land admeasuring 990 sq. mtrs. and were
running the factory and business of “Aava Natural Mineral Water”
which is a certified water sources and certified bore wells under the
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strictest bureau of Indian standards and FSSEI standards, after
getting necessary permission from the Corporation to create bore
wells in 2004 and permission of ground water withdrawal from the
State Government. According to the petitioners the plans for the
factory premises were passed in the year 1988 and the Corporation
together with the status of non-agricultural land, has also
regularized the entire construction on the petitioners’ property.
5.2 In the year 2012, the Town Planning Officer deleted the 12
meter road of the sanctioned draft TP scheme which was passing
through the factory premises of the petitioners ensuring that no
assets, water sources or built up structure of the petitioners are
damaged. The Town Planning Officer in the year 2021, has shifted
the road from the petitioners’ premises towards the east which was
approved by the Corporation. Contention is raised that the Chief
Town Planner and the Corporation, have also instructed the Town
Planning Officer to save the buildings and other infrastructure.
Recommendations were also received by the Chief Town Planner to
consider the issue indicated in the letter dated 31.12.2021. The
Corporation as well has granted the consultation to the proposal of
the Town Planning Officer dated 25.05.2021. As per the consultation
dated 13.07.2022, the Town Planning Officer was recommended to
make proper verification in respect of the grievances raised by the
petitioners for the land in question. The Corporation was also
consulted and approved the map suggested by the Town Planning
Officer. It is the further case of the petitioners that the Corporation
on 06.08.2022 has sent the map together with the paramarsh to the
Town Planning Officer to shift the road further east and consolidate
the land holding of the petitioners in survey no.316 and nearby,
considering the provisions of section 45B and 45C of the Act of
1976.
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5.3 Despite the instruction and consultation, the grievance of the
petitioners is that the Town Planning Officer in the preliminary
award, has laid down the TP road splitting the petitioners factory
premises in the survey no.316 and has earmarked the reservation
for socially and economically weaker section in the east of the
petitioners land. Moreover, a detailed survey was undertaken by the
Town Planning Officer of the petitioners’ properties through the
District Inspector of Land Records (hereinafter referred to as “the
DILR”) who, in turn, has given its report which was received on
27.10.2022. The said survey was completely disregarded by the
Town Planning Officer as it shows the road over the existing
buildings, water sources and felling of hundreds of trees.
5.4 The land bearing revenue survey no.296 has been divided into
28 subplots. The petitioners, are the owners and occupiers of survey
no.296/1 admeasuring 708 sq. mtrs. including other co-owners.
Specifically, Shri Behram Mehta, Director of petitioner no.3 and
Tinaben Mehta – petitioner no.2 are the owners of survey no.296/2,
296/4, 296/5, 296/6, 296/9, 296/22, 296/23, 296/25 and 296/26, all
admeasuring about 708 sq. mtrs. It is the further case of the
petitioners that the petitioners are the owners and occupiers of
revenue survey no.296/B admeasuring about 4000 sq. mtrs. and
296/2/A admeasuring 101 sq. mtrs. The petitioners and other co-
owners, have been allotted combined final plot no.59/1 to 59/5
which is admeasuring 22,447 sq. mtrs. Survey no.295/1, is
admeasuring 2428 sq. mtrs. and in view thereof, proportionate final
plot has been given.
5.5 The grievance of the petitioners is against the laying down of
the 12 meter TP road and reservation from the middle of the
petitioners’ land bearing survey no.316 and 394/2, it being arbitraryPage 9 of 130
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and unjust.
Challenge and Prayers:
a) Challenge, inter alia, is to quash and set aside the notice
dated 13.10.2022 issued by the Assistant Estate Officer,
Ahmedabad Municipal Corporation (hereinafter referred to as “the
Corporation”) to all the owners and occupiers of survey numbers
mentioned therein including the petitioners. Direction is also sought
for permanently restraining the respondent no.4 – the Corporation
from taking possession of the revenue survey no.298 from the
petitioners.
b) Challenge is also to quash and set aside the decision of the
respondent authority in proposing 18 meters T.P. road as well as
final plots of others in the original plots of the petitioners and 24
meters T.P. road shown in the survey no.298 of the preliminary TP
scheme no.67 as the Town Planning Officer has no authority and
jurisdiction, with a further prayer to reconsider the decision with
regard to proposing 18 meter and 24 meter T.P. road in preliminary
TP scheme no.67 in survey no.298.
(iv) Writ petition being Special Civil Application no.22693
of 2022 – Firdos Sorabji Cambatta vs. State of Gujarat &
OthersFactual Aspects:
6. The petition pertains to land bearing survey no.314/1
admeasuring 708 sq. mtrs., survey no.314/2 admeasuring 7891 sq.
mtrs. and further survey no.314/3 admeasuring 6273 sq. mtrs. The
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petitioner is also the owner of land bearing survey no.315 paiki
admeasuring 2630 sq. mtrs. purchased in the year 2019.
6.1 Revenue survey no.314/1, has been given original plot and
final plot 6/1 admeasuring 496 sq. mtrs. Survey no.314/3 has been
given original and final plot 6/3 admeasuring 4391 sq. mtrs. The
grievance of the petitioner is that 12 meter road has been expanded
to 30 meters and as a result whereof, all the trees planted by the
petitioner, would have to be removed. The petitioner, therefore, has
prayed for quashing and setting aside of the decision of the Town
Planning Officer providing reservation of 30 meter road on the
eastern side and 18 meter road on the southern side of the land
bearing survey no.314/3 and reservation provided in survey
no.314/1 by the Town Planning Officer.
Challenge and Prayers:
a) Challenge is to the decision of the Town Planning Officer
providing reservation of 30 meters road on the eastern side and 18
meters road on the southern side of the land bearing survey
no.314/3 as well as the reservation provided in survey no.314/1 by
the Town Planning Officer, it being erroneous and bad in eye of law.
b) Also, prayer is to quash and set aside the said decision
providing such reservation in the preliminary TP scheme, it being
illegal, arbitrary and unconstitutional.
(v) Writ petition being Special Civil Application no.24962
of 2022 – Chikuvadi Private Limited & Others vs. State of
Gujarat & OthersPage 11 of 130
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Factual Aspects:
7. The petition pertains to various survey nos., namely, revenue
survey nos.339, 340/1, 340/2, 342, 346, 349/1, 349/2 and 352 paiki.
The grievance of the petitioners is that at the time of preparation of
the draft TP scheme, the petitioners have made a representation for
allotment of all final plots in one cluster. The request of the
petitioners was allotment of final plots where survey no.349/1,
349/2 and 352 are allotted and sought for deduction to be adjusted
out of survey no.339, 340/1, 340/2, 342 and 343. The
representations were accepted and consolidated final plots were
given. As against total land holding of 75672 sq. mtrs. the
petitioners were allotted six final plots admeasuring 55760 sq. mtrs.
Final plot nos.13/1, 13/2, 31, 17/1, 17/2 admeasuring 52811 sq.
mtrs. are adjoining to each other and in one cluster and final plot
no.13/3 admeasuring 2949 sq. mtrs. was allotted on the west of the
cluster in original plot no.13.
7.1 The stand taken by the petitioners is that the decision of the
Town Planning Officer of allotting final plots in original plots is
erroneous considering the fact that there is no provision in the Act
of 1976 which requires the allotment of the final plot only within the
original plot.
Challenge and Prayers:
a) Direction is sought for to the Town Planning Officer to
withdraw revisions made in the preliminary TP scheme no.67
(Hansol) to the extent of the petitioners plots i.e. land bearing
survey no.339; survey no.340/1; survey no.340/2; survey no.342/2;
survey no.346 of the petitioner no.1. Prayer is also for survey
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no.349/1; survey no.349/2 of the petitioner no.2 and survey no.352
paiki of petitioner nos.3 to 7 each holding the undivided interest.
b) Challenge is also to quash and set aside the decision taken
and published by the Town Planning Officer in exercise of the
powers conferred by Rule 26 of the Gujarat Town Planning and
Urban Development Rules, 1979 (hereinafter referred to as “the
Rules of 1979”) to the extent of petitioners plots (hereinafter
referred to as “the plots in question”).
(vi) Writ petition being Special Civil Application no.18142
of 2021 – Riverfront Development Company & Another vs.
Ahmedabad Municipal Corporation & Another
Factual Aspects:
8. The petition pertains to survey no.299/2 paiki admeasuring
17402 sq. mtrs. which was allotted final plot no.57/2 admeasuring
about 1218 sq. mtrs. According to the petitioners the
commencement letter has been issued in the year 2011, the
petitioner has paid the requisite fees, necessary plans have been
sanctioned; however, in absence of the implementation of the TP
scheme, there is no excess to the plot of the petitioners and the
petitioners are unable to develop the same. The response on the
part of the Corporation relying upon condition no.10 of the
communication dated 11.04.2008 of the Town Planning Officer
addressed to the Chief Town Planner stating that it will be the
responsibility of the land owners to provide for approach road.
Challenge and Prayer:
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a) Direction is sought for to the respondent authorities to
commence the construction work of public roads adjoining the final
plot no.57/2 in accordance with the draft TP scheme no.67.
Re: Submissions of the petitioners:
(i) Special Civil Application no.21780 of 2022
9. Mr Mihir H. Joshi, learned Senior Advocate assisted by Mr Amar
D. Mithani, learned advocate for the petitioners submitted that the
draft TP scheme was sanctioned on 16.08.2004 whereby, all the plot
holders of survey no.298 were given separate original and final plot,
specifying the area, which is clear from Form ‘F”. All plots were
defined and demarcated during the process of preparation of the
draft TP scheme and hence, the demarcated original plots and final
plots were before the Town Planning Officer. It is submitted that
while preparing the preliminary scheme, the Town Planning Officer
has to keep in mind, the factors provided in sub-section (3) of the
Section 52 of the Act of 1976. Clause (xi) of sub-section (3) of
section 52 provides that the Town Planning Officer has to draw the
preliminary and final scheme in accordance with the draft scheme.
The Town Planning Officer ought to have acted in tune with the draft
TP scheme as sanctioned by the State Government; however, the
separate final plots provided under the sanctioned draft TP scheme
have been combined and the plot holders have been given one
common final plot.
9.1 It is submitted that without offering any justification for
deviation from the draft TP scheme, much less any error, the Town
Planning Officer, for no reason, has cancelled and modified the
separate final plots and combined them and one common plot has
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been given amongst all the plot holders. As the Town Planning
Officer has taken a decision to combine final plots, nothing further is
left to be done inasmuch as, Section 53 of the Act of 1976, provides
the decision of the Town Planning Officer to be final and binding.
Furthermore, there is no provision of review or appeal. It is next
submitted that Section 65 of the Act of 1976 is a provision where
the State Government can only modify the scheme for a limited
purpose of correcting error, irregularity or informality and is not the
power of appeal and only error, irregularity can be taken care of and
contemplates no hearing. Hence, in view of the breach of the
fundamental provisions, the whole exercise has been vitiated.
9.2 It is submitted that notices were issued by the Town Planning
Officer to the petitioners and others, inter alia, allotting tentative
original plot no.58, inviting the objections and suggestions. The said
form states that the rights of the respective land owners would be
as per their rights in the original plot. Now, the Town Planning
Officer, upon representation being made by the petitioners to
provide the separate final plots, says that it cannot be resolved. It is
further submitted that Rule 26 of the Rules of 1979 provides the
scope of opportunity to a person whose rights are vitally affected by
the operation of the intended scheme and the procedure
contemplated is mandatory in nature. Sub-rules (3) and (4),
mandate the Town Planning Officer to pass a decision with reasons
and the decision is to be communicated to the owners and the State
Government.
9.3 It is further submitted that apropos the representation of the
petitioners dated 20.11.2021 and more particularly, point nos.3 to 7
and 11, the response of the Town Planning Officer is that the
separate final plots have not been allotted in absence of the hissa
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form no.11 and Hissa Mapni from the office of the DILR. One of the
issues raised was, not to demolish the structure standing since 1985
as the petitioners were ready to offer an alternative land or make
the payment of contribution. But the response was that the
measurement would be after taking guidance from the Chief Town
Planner or the authorised officer appointed by the Corporation.
9.4 It is submitted that the writ petition was filed and this Court
was kind enough to issue notice, observing that the matter deserves
consideration. Even direction was issued not to take coercive steps
under Section 68 of the Act of 1976. When this Court, was seized of
the matter and the Town Planning Officer was aware about the
petitioners having applied for the Hissa Mapni as the application was
forwarded to him; as well, without waiting for any decision, on
27.10.2022, the Town Planning Officer published the award under
sub-rule (9) of Rule 26 of the Rules of 1979 and form ‘J’ was issued
on 03.11.2022. Clearly, on that very day, the Town Planning Officer
has received the record, details of the area, the measurement sheet
etc. from the office of the DILR; however, speedily and pending the
writ petition and without informing and taking the leave of the
Court, the decision has been taken. It is further submitted that for
the period from 2005 till the year 2021, no steps were taken. It is
only when the petitioners approached this Court, the decision was
taken in haste reflecting non-application of mind much less
consideration or the reasons. Therefore, the decision as it stands is
clearly invalid and amounts to overreaching the Court process. It is
therefore urged that the matters require reconsideration by the
Town Planning Officer.
9.5 It is further submitted that this Court was kind enough to pass
the order dated 29.11.2022 directing the DILR to consider the
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application of the petitioners made to the Collector and Deputy
Collector and to undertake the Hissa Mapni. The office of the DILR,
undertook the said exercise indicating four grounds. One of the
grounds was the absence of the consent of the plot holders. It is
submitted that the Town Planning Officer is requiring the Hissa
Mapni whereas, DILR says that there is no consent and no Hissa
Mapni can be done. The parties are referred to the authority under
the provisions of the Gujarat Land Revenue Code, 1879 (hereinafter
referred to as “the Code”). The petitioners, therefore, have been
shunted from pillar to post. It is further submitted that the office of
the DILR has filed the reply and together with the reply, the Rojkam
has been placed on the record which, contains the signature of all
the plot holders and when there are signatures, it is difficult to
understand as to whose consent the DILR is asking for. Even, as per
the measurement sheet, all the plots are demarcated which has
been ignored by the DILR and is asking the plot holders to proceed
under the Code. It is further submitted that there is a specific stand
taken by the petitioners in affidavit-in-rejoinder, stating that there is
no objection raised on the contrary, the plot holders have tried to
cooperate and provided the documents, namely, registered sale
deeds, N.A. permission etc. It is submitted that even in the
communication dated 18.05.2023 of the Deputy Collector, there is a
specific reference of the registered sale deed dated 18.11.1999. It is
submitted that if at all there is any dispute, as per section 46 of the
Act of 1976, the aspect of disputed ownership can be decided
before drawing up of preliminary scheme by the Town Planning
Officer as it confers the vast powers upon him read with Rule 23 of
the Rules of 1979 which provides for the procedure therefor.
9.6 It is submitted that the notification was issued by the State
Government in its Urban Development & Urban Housing Department
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dated 20.02.2004 sanctioning the variation to be made in the
development plan as set out in the schedule. It is thereafter, the
notification dated 16.09.2004 was issued by the State Government,
sanctioning the draft scheme and the 30 meter wide road passing
through the survey numbers indicated therein, was directed to be
deleted and alignment, was to be taken as per the variation
approved as per the notification dated 20.02.2004. Also, the part
plan was approved in tune therewith. It is further submitted that
Section 40 of the Act of 1976 provides for making and contents of a
town planning scheme. Clearly, the draft TP scheme did not have
the road at all; however, it was owing to the original development
plan issued vide notification dated 21.04.2006, variation was
provided. In fact, the notification dated 18.05.2002, was already
changed on 20.02.2004 and hence, what was not in the
development plan, could not to have been covered in the town
planning scheme. It is further submitted that vide notification dated
06.05.2006, the State Government, replaced the 36 meter road by
30 meters and therefore, 36 meter road became 30 meter road and
passes through the land of the petitioners. It is submitted that so far
as the provisions of section 68 of the Act of 1976 read with Rule 33
of the Rules of 1979 are concerned, have no application at all.
9.7 It is submitted that there was a complaint filed by the Ministry
of Defense raising objection against the 36 meters wide road
passing partially through the defense land of the Army and the
bridge over the Sabarmati river. Even grievances were made to the
State Government at the highest level. There was even a request
made for quashing of the notifications dated 21.04.2006 and
07.05.2006, with a further request to adhere to the notification
dated 20.02.2004 read with notification dated 16.09.2004; however,
it appears to have not been considered.
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(ii) Special Civil Application no.19030 of 2022
10. Mr Mihir H. Joshi, learned Senior Advocate assisted by Mr Amar
D. Mithani, learned advocate, at the outset, submitted that
everything is identical to the writ petition being Special Civil
Application no.21780 of 2022, except the fact that in the past, the
petitioner had preferred a writ petition being Special Civil
Application no.1231 of 2008 and this Court, vide order dated
16.12.2009, has disposed of, giving the liberty to the petitioner to
raise the objection before the Town Planning Officer and the
objections submitted if any, were directed to be dealt with and
considered while preparing the preliminary TP scheme and
thereafter, while sending it to the State Government for its sanction.
It is submitted that accordingly, objections were submitted on
24.12.2009, followed by another representation dated 20.06.2016.
10.1 Mr Amar D. Mithani, learned advocate submitted that
vide sale deed dated 16.07.1988, the land was purchased of survey
no.298 admeasuring 1185 sq. yards. Necessary details, have been
incorporated in the 7/12 form and hence, the aspect of the road
ought to have been considered. It is further submitted that the
village form no.7/12 reflects the marg pot kharabo area of 2023 sq.
mtrs. in survey no.298. Similarly, the same is reflected in the DSO
record. Mr Amar D. Mithani, learned advocate submitted that
clearly, as per the 7/12 form of the year 1993-1994, an area of 2023
has been earmarked as “Marg Ane Kharabo” meant for road and
wasteland. It is submitted that even at the stage of sanctioning of
the draft TP scheme, road was considered, which is clear from the
affidavit filed by the Town Planning Officer & Senior Town Planner.
Now, in view of the common plot allotted with no demarcation, the
same would create chaos amongst the plot holders. Even while
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preparing the draft TP scheme, the Corporation has considered the
road area; however, the common road area was required to be
considered on a pro rata basis amongst the plot holders; however, it
is vanished in the scheme. It is further submitted that the road
passing through survey no.298 was deleted by the State
Government on 20.02.2004 and thereafter, on 16.09.2004, the draft
TP scheme was sanctioned wherein, it is specifically provided that
30 meter road in survey no.298, shall be deleted and alignment
shall be taken as provided in the approved development plan dated
20.02.2004.
10.2 It is further submitted that even if a 24 meter road is
sanctioned in the revised development plan in the year 2014, it
would not preclude the petitioners to raise the objection for its
alignment, for getting the separate final plot etc. It is further
submitted that laying down of the proposed 24 meter road, would
affect the green cover of the area and against the continuous
objections raised by the Army Cantonment. It is further submitted
that the Corporation, on 14.09.2016 has directed the Town Planning
Officer to decide the alignment of 24 meter road after hearing the
land owners and affected parties. Therefore, alignment of the road
was kept open for the Town Planning Officer to decide. It is
therefore urged that the matter requires reconsideration by
remitting the matter before the Town Planning Officer.
(iii) Special Civil Application No. 22104 of 2022:
11. Mr Rashesh Sanjanwala, learned Senior Counsel assisted by
Mr Mrugen Purohit, learned Advocate, appearing for the petitioners,
while inviting the attention to the provisions of the Act of 1976,
submitted that sections 40 to 48A are the provisions contained in
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Chapter V and deal with the draft TP scheme. Section 44 provides
for the contents of the draft scheme; section 45 envisages
reconstitution of the plots and section 46 comes into play when
there is inter se dispute regarding the ownership. Section 46 gives
power to the Town Planning Officer to decide as to who shall be the
owner for the purpose of the Act of 1976. In case, the record is
inaccurate or inconclusive, the provisions of section 46 calls for an
inquiry by the Town Planning Officer. It is submitted that section 46
is available at both the stages namely at the stage of preparation of
the draft scheme and at the stage of preparation of the Town
Planning Scheme. Section 48-A envisages vesting of the land in an
appropriate authority.
11.1 It is submitted that almost all the decisions have been
taken by the Town Planning Officer on 27.10.2022. The Town
Planning Officer has exercised the powers in a most arbitrary
manner. It is further submitted that to an extent, the issue is similar
to the issue raised in Special Civil Application No. 21780 of 2022 and
Special Civil Application No. 19030 of 2022, inasmuch as, there was
earlier demarcation provided in the draft TP scheme; however, in
the preliminary TP scheme, the Town Planning Officer has not
provided any demarcation and has consolidated final plots of all
seven plot holders.
11.2 It is submitted that at the stage of preparation of the
draft TP Scheme, authorities found the revenue record accurate and
conclusive and hence, allotted seven demarcated different plots to
the plot holders, none of the plot holders had disputed or raised any
objections and it is at the stage of preparation of the preliminary
scheme, that a change has been effected. It is submitted that if the
decision is tainted with arbitrariness and procedure has not been
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followed, then in the writ petition under Article 226, the decision can
be interfered with and the Town Planning Officer can be directed to
reconsider the decision. It is submitted that the stand of the State
Government is that once the Town Planning Officer sends the
preliminary scheme with its decision, the State Government then
will consider the matter as it has ample powers to do so. It is
submitted that under the Act of 1976 read with the Rules of 1979,
the role of the Town Planning Officer is very crucial, considering the
valuable rights, i.e. right of property with which the authorities are
dealing with. In addition to being a constitutional right it is also a
fundamental right. Thus, the authorities, when dealing with the
properties of the public, are expected to follow the procedure
scrupulously and the decision has to be supported with reasons,
which would be amenable to judicial review. It is submitted that if
the party comes at the stage of the draft TP scheme, stand taken
would be that it is premature; if the party comes at the stage of
preparation of the preliminary TP scheme, the stand taken would be
that the matter is yet to be decided by the State Government; and if
the party comes at the stage of matter being considered by the
State Government the stand taken would be that it has become part
of the Act. Therefore, the role of the Town Planning Officer is most
crucial.
11.3 It is submitted that section 47 provides for objections to
the draft TP scheme to be considered and the obligation.
Furthermore, Rule 17 of the Rules of 1979 provides for calling of a
meeting of the owners to explain in such meeting tentative
proposals of the draft scheme for eliciting public opinion and
suggestions of the said proposals. The appropriate authority then
takes into consideration all the suggestions as made on the
proposal. Therefore, the procedure to follow at the stage of
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preparation of the draft scheme is very crucial. Rule 23 provides for
an inquiry where ownership is disputed and the inquiry is to be held
as per the said provisions. Once the draft scheme is approved, the
Town Planning Officer enters the office and it has to give a notice in
the prescribed form to the persons affected by the scheme and
demarcate the areas allotted and it is only as per clause (2) of sub-
section (1) of section 52, that after giving notice the Town Planning
Officer may determine which final plot is to be allotted to person in
ownership in common, the share of such person, etc.
11.4 Reliance is placed on the judgment of this Court in the
case of Kishanbhai Hargivandas Patel vs. State of Gujarat reported
in (2010) 4 GLR 2861. Considering the scheme scope and ambit of
the provision of the Act of 1976, in paragraph 13 it has held and
observed that the Town Planning Officer is required to record the
brief minute setting out the points at issue and the necessary
particulars and is required to give a decision with reasons and all
such minutes shall be appended to the scheme. The Town Planning
Officer shall record and enter in the scheme every decision taken by
him and all the suggestions received by him, if any, along with the
preliminary TP scheme prepared by him and send it to the State
Government for its sanction. It has been further observed that
opportunity is required to be given to such owners who are likely to
be and adversely affected by such modification of the preliminary
TP scheme suggested by the Town Planning Officer. It is therefore
submitted that none of the issues raised were considered and
everything has been done in hot haste.
11.5 Mr Sanjanwala, learned Senior Counsel further
submitted that considering sub-rule (4) of Rule 26 of the Rules of
1979, it has been held and observed that the Town Planning Officer
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is required to give every person interested in any land affected by
any particular of the scheme, sufficient opportunity of stating their
views and shall not give any decision till he has duly considered
their representations. It has been noted that the Town Planning
Officer is required to record a brief minute setting out the points at
issue and the necessary particulars, and shall give a decision with
the reasons therefor, and all such minutes are required to be
appended to the scheme. After considering the objections, the Town
Planning Officer shall make and prepare the preliminary TP scheme
as per section 52 and define and demarcate areas allotted to or
reserved for any purpose or for a purpose of the appropriate
authority and the final plots. It is therefore submitted that the
decision making process contemplates the decision coupled with
hearing and decision. It is further submitted that the opportunity at
the stage of section 65 is no argument, as it does not contemplate
hearing. The preliminary scheme goes to the State Government and
if it decides not to modify and sanction the scheme as received, the
petitioners shall have no right or opportunity. Therefore, section 65
is not substitute or answer to the contention that the provisions of
Rule 26 of Rules of 1979, has not been followed.
11.6 Reliance is placed on the judgment in the case of
Babubhai Savjibhai Bathani vs. State of Gujarat passed in Special
Civil Application No. 14779 of 2018 and other allied matters. The
grievance raised by the petitioners was about 30 meter wide road
passing through the plot, as a result whereof, the constructed
premise of the petitioners was substantially being demolished. The
Division Bench of this Court considered Rule 26 of the Rules of 1979
and it held that every person interested in any land affected by the
scheme shall be given sufficient opportunity of stating their views
and the Town Planning Officer shall not give any decision, unless
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such views are considered. This Court, therefore, relegated the
petitioner to state its views with a further direction to the Town
Planning Officer to decide the objections after giving the petitioners
sufficient opportunity and to pass an order.
11.7 While referring to the paper-book, it is submitted that
the consultation took place with the Corporation and it vide item
no.6, suggested to reconstitute final plot no.131 without affecting
the existing plot. At item no.14, the Corporation suggested a change
of alignment of the 12 meter road. Similarly, the Chief Town Planner
has provided the consultation providing a specific instruction to
make proper verification in respect of grievances raised by the
petitioner in respect of Revenue Survey no.316 and more
particularly, item no.38. Similar suggestion was provided at item
nos.43 and 44 to make the provisions of town planning road in such
a manner that it does not affect the construction. Even at one stage,
the Corporation approved the map prepared by the Town Planning
Officer, so also the request of the petitioner for consolidation of
plots. It is submitted that the Town Planning Officer, disregarding
the consultation laid a 12 meter road splitting the petitioner’s
factory premises and has put a reservation for SEWS which is an
arbitrary exercise of powers.
11.8 It is submitted that the Town Planning Officer took
eighteen years to prepare the preliminary TP scheme and in the
process, the decisions were taken and changed, coupled with
consultation with the Chief Town Planner and the Corporation and
on the basis whereof, the sanctioned draft TP scheme was proposed
to be modified. The notice was issued by the Town Planning Officer
inviting suggestions and objections and a meeting was scheduled on
01.09.2022, followed by a notice dated 14.10.2022 requiring the
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petitioners to remain present on 21.10.2022. On 20.10.2022, the
petition was filed which came up for hearing on 21.10.2022 and this
Court was kind enough to issue notice and directed not to take
coercive steps. The petitioner filed representation on 21.10.2022
and on 27.10.2022, the Town Planning Officer took a decision. The
issues were raised about a 12 meters town planning road passing
through the land of the petitioners and putting reservations in the
original plot affecting the factory of natural mineral water sources
and ground water sources. Suggestion was also put forward offering
a huge portion of the open land despite which, the road has been
proposed on a constructed area of the land of the petitioners’. It is
submitted that the Town Planning Officer was transferred; however,
has been brought back and asked to finish the scheme which the
Town Planning Officer did in a hot haste, vitiating the decision.
(iv) Special Civil Application No. 22693 of 2022
11.9 Mr Rashesh Sanjanwala, learned Senior Counsel assisted
by Mr Mrugen Purohit, learned Advocate submitted that the
captioned writ petition is in connection with survey no. 314/3
admeasuring 6273 sq. mts., survey no. 314 admeasuring 708 sq.
mts. and survey no. 314/2 admeasuring 7891 sq. mts. owned and
occupied by the petitioner and his brother and survey no. 315 paiki
admeasuring 2630 sq. mts. is purchased by the petitioner on
20.12.2019. It is submitted that Hissa form no. 4 was forming part of
the record and it showed who are the owners of the land in
question. It is submitted that final plots were allotted in lieu of their
original holding and names of the joint owners were reflected in the
redistribution and valuation statement. Despite there being
demarcation and Hissa Mapni between the owners, the joint final
plot was allotted. While inviting the attention to the convenience
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compilation, it is submitted that the petitioner has been provided
Final Plot nos.6/1, 6/2 and 6/3 and diagonally opposite Final Plot
no.47 has been provided. It is submitted that all around, 30 meter
road, 18 meter road and 12 meter road have been provided. The
grievance of the petitioner is that though there is no need of 30
meter road, the same has been provided. It is submitted that even
otherwise, there is an option of 24 meter road available. Also,
because of the 30 meter road, felling of the large number of trees is
likely to take place. It is submitted that said 30 meter road is
passing through the gauchar land as well wherein, now, there is a
reservation for public purpose. It is submitted that the petitioner has
been involved in growing trees and preserving the green cover.
Even the proceedings have been initiated before the National Green
Tribunal. The road is connecting only to the riverfront and ends upto
the airport. It is further submitted that the petitioner therefore, on
25.07.2022, made representation to the State Government.
11.10 It is submitted that notice came to be issued on
07.09.2022 which, was received on 23.09.2022 and on 26.09.2022,
request was made for adjournment, accordingly, a fresh notice
came to be issued on 28.09.2022 which, was received on previous
day around 14:00 hours slating the hearing on 07.10.2022. Request
was therefore made for sometime, stating the grounds and
objections. It is further submitted that the 24 meters road has been
provided with two dead ends. Reliance is placed on the final report
of the Gujarat Institute of Desert Ecology indicating what exactly is
biodiversity of the area. It is submitted that even proceedings are
pending before this Court by way of Letters Patent Appeal No. 1052
of 2011 and the area has been barricaded. Also, 80% of the land is
open. It is therefore submitted that in absence of any reasons
assigned, the matter requires reconsideration by the Town Planning
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Officer, as, there is a complete non-compliance of principles of
natural justice and Rule 26 of the Rules of 1979 has been violated
by the Town Planning Officer.
(v) Special Civil Application No. 24962 of 2022
11.11 Mr Rashesh S. Sanjanwala, learned Senior Counsel
appearing with Mr Aadit Sanjanwala, learned Advocate submitted
that the captioned writ petition is in connection with eight parcels of
land. Initially the request of the petitioners was accepted and
consolidated final plots were given to the petitioners in the
sanctioned draft scheme on 16.09.2004. It is submitted that the
total holding of the petitioners was 75,672 sq. mts. and what
remained after deduction was 55,760 sq. mts. While relying upon
the map indicating the comparative position prevailing originally,
that is, after the draft TP scheme was sanctioned and proposed
plots during the preliminary TP scheme, it is submitted that the
petitioners were in possession of survey no. 352 and survey no. 341
on one side and parcels of land bearing survey nos. 339, 340, 342
and 346 on the other side. It is submitted that since there were
buildings existing in scattered manner, during the draft TP scheme,
the petitioners were allotted final plot in survey no. 352 and survey
no. 349 with a larger area coupled with a similar area of survey no.
346 and the land bearing survey nos. 339, 340 and 342 were
retained. It is submitted that the petitioners were not having any
issue and the whole area was developed as green cover
accordingly; however, now as per the preliminary TP scheme the
said green cover is converted into urban forestry and the petitioners
are allotted plots at scattered places.
11.12 It is next submitted that the decision was provided by
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the Town Planning Officer in form J and the remarks column is
empty and it can be easily said that no decision is taken on the
petitioners’ representation disregarding the language contained in
the provision using the words “consideration” and “decision”. It is
submitted that the word “consider” in Rule 26 is also interpreted to
mean consideration in a form reflecting application of mind. The
note together with the form J are only standard instructions. The
grievances of the petitioners were submitted somewhere in the
month of September, 2023; and have not been considered which is
the specific case of the petitioners, more so the reply is also absent
dealing with the said aspect. While concluding, it is submitted that
after draft scheme was sanctioned and land was allotted, back then
the petitioners have developed it by putting up certain constructions
and the green cover, which suddenly is now earmarked as urban
forestry. The petitioners are ready and willing to maintain the urban
forestry by filing an undertaking. It is submitted that the philosophy
and the approach of the authorities is to retain the trees, then it is
difficult to understand as to why the authorities are becoming
insensitive towards the trees. Thus the authorities have failed to
substantiate the consideration by the Town Planning Officer.
(vi) Special Civil Application no.18142 of 2021
12. Mr Mitul K. Shelat, learned advocate for the petitioner
submitted that the petitioner is seeking direction to implement the
scheme for, the petitioner though was allotted the final plot no.57
during the process of the draft TP scheme; got the necessary
permission from the Corporation in the year 2011; paid a huge
amount of fees in September 2011, is deprived of utilising the land.
It is submitted that a road network has been provided in the draft TP
scheme; none of the roads have been opened and as a result the
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petitioner is unable to develop the land.
12.1 It is submitted that the draft TP scheme, so also the
development plan were of the year 2004 and 2014 respectively and
preliminary TP scheme in the year 2024; but till date, there is no
road available. It is submitted that while seeking the development
permission, one of the conditions imposed is that the private
landowners would have to create their own access. The whole
exercise has been completed to effect the deduction. It is submitted
that the grievances have been raised by the petitioner about the
opening of the roads; however, it has fallen on deaf ears. The object
of the town planning scheme is to provide planned development
with robust road network providing access to the respective plot
holders. Even as per the revised development plan of the year 2014,
there is a road in existence. The road was originally in existence;
however, at one point of time, the road was removed, but in the
revised development plan, the 24 meter road was already provided
and the road which has been provided in the preliminary TP scheme,
is in consistent with the revised development plan of the year 2014.
Providing road is in sync with the requirement as contained in the
provisions of the Act of 1976.
12.2 It is submitted that the preparation of the development plan is
on the macro level; whereas, town planning scheme is at the micro
level and therefore, the town planning scheme, cannot be envisaged
without the road. In any case, in the revised development plan,
there is a road and it cannot be presumed or cannot be argued that
the preliminary TP scheme shall not have the road. It is with this
grievance that the petitioner is before this Court, seeking
implementation of the town planning scheme so as to provide
access to the land enabling the development. It is submitted that
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various representations were made to the authorities but have
fallen on deaf ears, despite the fact that a substantial portion of the
land has been procured by way of deduction for the purpose of road.
Even the notice was issued in the year 2020 and nothing is done
and hence, the petitioner has to approach this Court. It is further
submitted that the reply has been filed by the Corporation, opposing
entertainment of the writ petition on the ground that as the
development permission is of the year 2011, the petition is barred
by delay and laches.
12.3 It is submitted that the stand is also taken in the reply that
there are possibilities of change in the proposal and once the final
plot and network of the town planning road, reaches beyond the
stage of consultation, further proceedings would be initiated as per
law. It is submitted that the condition no.10 of the communication
dated 11.04.2008 has been referred to which provides that it will be
the onus of the plot holders to provide for road and/or approach
road and the condition has been accepted by the petitioner which is
a proforma part of every opinion addressed by the City Town
Planning Officer in relation to any proposal received in respect of
development of any final plot under any sanctioned town planning
scheme. It only speaks of the land owner to make provisions for
access to his own plot. However, in no manner, it can absolve the
Corporation of its responsibility of laying the public road. It is
submitted that similar such permissions have been granted in
respect of different final plots under different schemes and such
conditions have no nexus with laying of the public road. It is
submitted that if there is a town planning scheme, the road would
be coming through the land of other private owners and it is difficult
to understand as to how the authorities, are requiring the plot
holders to provide for the road for the purpose of enjoyment of the
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right to his property which burden, cannot be shifted on the plot
holders for, it would be rather impossible to provide any access to
the plots.
12.4 It is submitted that in the revised development plan (page 114
of the compilation), the road of 24 meter has been provided and
therefore, the prayer of the petitioner is to see that the scheme is
implemented and the petitioner is able to develop and utilise the
plot by having access to the road. It is submitted that a timeline has
been provided as per the provisions of the Act of 1976. The duration
with respect to the draft development plan, is 3 years; submission of
draft plan to the State Government within 6 months from the
publication of the draft development plan with an outer limit of 12
months; publication of the draft scheme is provided within 9 months
from the declaration of the intent and not later than 12 months;
consideration of the object of the draft scheme within one month
from the date of publication, so on and so forth.
12.5 Reliance is placed on the judgment of the Apex Court in the
case of Municipal Corporation for Greater Bombay and another vs.
The Advance Builders (India) Pvt. Ltd., reported in (1971) 3 SCC 381.
It is submitted that there is no provision under the Act of shifting the
onus on the owners to undertake the laying of the road. It has been
clearly stated in the said judgment that the obligation of laying the
road, is with the authorities concerned. For the proposition that if
the road is provided in the draft development plan, it has to be in
the town planning scheme. Reliance is placed on the judgment of
the Apex Court in the case of in the case of Ahmedabad Municipal
Corporation and Another vs. Ahmedabad Green Belt Khedut Mandal
reported in 2014 (7) SCC 357. It has been held and observed that
the development plan vis-a-vis the town planning scheme are two
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different things and the development plan is a macro plan for a vast
area wherein a town planning scheme is a minor scheme within the
town. It has also been pointed out that sub-section (1) of section 40
simply provides that in the making of a town planning scheme the
authority has to have regard to the final development plan, if any.
While explaining the term “having regard to the development plan”,
it has been held and observed that it means that a town planning
scheme cannot disregard or ignore the designation/reservation
made in the development plan.
12.6 For the proposition of right to property vis-a-vis the provisions
of the town planning scheme, reliance is placed on the judgment of
the Apex Court in the case of Indore Vikas Pradhikaran vs. Pure
Industrial Coke & Chemicals Ltd., reported in (2007) 8 SCC 705, it
has been held and observed that although ordinarily when a public
authority is asked to perform statutory duties within the time
stipulated it is directory in nature but when it involves valuable
rights of the citizens and provides for the consequences it would be
construed to be mandatory in character. The Apex Court has
pointed out that the right of property of an individual which
although is not a fundamental right but a constitutional and human
right. It has been further held and observed that allowing the
authorities to freeze usage of the land would lead to complete
misuse of powers and arbitrary exercise thereof depriving the
citizen of his right to use the land subject to the permitted land use
and laws relating to the manner of usage thereof. This would be an
unlawful deprivation of the citizen’s right to property which right
includes within it the right to use the property in accordance with
the law as it stands at such time. While considering the expression
“at any time”, it has been held and observed that town planning
scheme is made for the purpose of implementation of a
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development plan. Ordinarily, therefore, it would envisage the time
period for coming into force of the development plan and the expiry
thereof. Unless such a construction is given to the words “at any
time”, it would lead to manifest injustice and absurdity which is not
contemplated by the statute and therefore, the stand of the
Corporation that it can lay the road at any time, would run contrary
to the principle laid down by the Apex Court. It is under these
circumstances that the petitioner, has approached this Court,
seeking direction to the authorities to implement the town planning
scheme and it would be absurd on the part of the Corporation to
expect the petitioner to make the provision by providing a right to
access his plot.
Re: Submissions of the State Government:
13. Ms Manisha L. Shah, learned Additional Advocate General,
assisted by Mr Siddharth Rami, learned Assistant Government
Pleader while inviting the attention to the index of documents
(Special Civil Application no.21780 of 2022) submitted that
undeniably the network of roads is heart of town planning scheme
and is its important facet. Scheme though sanctioned in the year
2004, is awaiting the light of the day. It is further submitted that the
town planning scheme encompasses land admeasuring 11,82,000
sq. mtrs. and approximately, 245 revenue survey numbers are
covered. Also, 220 plots have been reconstituted at the stage of the
preliminary scheme. It is submitted that the decision has been
declared, followed by passing of the award and publication. Now
everything would go to the State Government and it is open to the
petitioners, to make representation, which would be considered and
a decision would be taken. In view of the status quo granted by this
Court, it is not sent to the State Government, It is submitted that the
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Town Planning Officer takes consultation with respect to the roads
under section 48A of the Act of 1976. Entire matter with legend
goes to the Corporation. During the process of the preliminary TP
scheme, ample consultations at various stages are sought for by the
Town Planning Officers with the Corporation; the Chief Town Planner
and so also the office of the DILR for the purpose of certification. In
the process, the Town Planning Officer, has given ample opportunity
to all the affected persons by issuing public notices as well as
individual notices, inviting suggestions and objections and only after
considering the objections, suggestions, it declared the decision
under section 52 of the Act of 1976 read with sub-rule (9) of rule 26
of the Rules of 1979.
13.1 While adverting to the objection of the petitioners as
regards the development plan, it is submitted that the plan is being
revised every ten years and it deals with larger roads and zones
being a macro planning. Even during the revision, notices were
published inviting objections and suggestions and the roads were
required to be incorporated by the Town Planning Officer in the
preliminary TP scheme after considering and in consultation with the
Corporation, keeping in mind the requirement of the road network in
the city. Section 40 of the Act of 1976, clearly provides preparation
of town planning scheme for the development area, regard being
had, to the proposals in the final development plan and hence, while
effecting the micro planning, the authority has to take into account
the development plan.
13.2 It is submitted that for the first development plan, sanctioned
under section 17 in the year 1987, there was no road proposed;
however, in the revised development plan, which was sanctioned on
18.05.2002, proposal to delete part of 36 meter road and reduce
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part to 18 meter road, coupled with a new alignment of 18 meter,
was sanctioned. It is further submitted that accordingly, vide
notification issued on 20.02.2004, the revised development plan
under section 19 came to be sanctioned whereby, part of 36 meter
road came to be deleted and part reduced to 18 meter road and
new alignment of 18 meter road was approved. It is further
submitted that in the draft TP scheme sanctioned, proposed 30
meter road came to be deleted and alignment as per variation
approved in revised development plan of Ahmedabad Urban
Development Authority (hereinafter referred to as “the AUDA”), was
directed to be considered. It is submitted that once again a
notification was issued, inviting objections and suggestions for
inclusion of 36 meter road and on 06.05.2006, a corrigendum came
to be issued and 36 meter road was replaced by 30 meter road. It is
further submitted that the 24 meter road is proposed under the
second revised development plan and at the stage of preparation
under sections 9 to 17, opportunity to submit necessary objections
and suggestions was provided. The second revised development
plan, came to be sanctioned under section 17 of the Act of 1976
after undertaking necessary procedure on 20.12.2014 which, has
remained unchallenged and therefore, challenging the legality and
validity of the 24 meter road at the stage of preliminary TP scheme,
cannot be permitted as it forms part of the second revised plan
sanctioned in the year 2014.
13.3 Ms Manisha L. Shah, learned Additional Advocate
General (Special Civil Application no.19030 of 2022) submitted that
as per the provisions of sub-section (1) of Section 52 of the Act of
1976 and the procedure laid down in Rule 26 of the Rules of 1979,
the Town Planning Officer has issued notices based on the revenue
record to the land owners inviting suggestions and objections,
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recording the proposals of the draft TP scheme, followed by
individual notices in the years 2005, 2010, 2021 and 2022. It is
submitted that everything is minutized and it goes to the State
Government maintaining the uniformity and with a view to seeing
that everything is considered by the State Government
dispassionately. It is submitted that schedule to the notification
dated 16.09.2004 sanctioning the draft scheme, contains various
aspects. Serial no.5 provides that 30 meters wide road passing
through the survey numbers indicated therein shall be deleted and
alignment shall be taken as per the variation approved in the
revised development plan dated 20.02.2004. Further paragraphs,
indicate providing a town planning scheme road to final plots which
does not get the frontage from the town planning road.
Furthermore, the instructions are also issued in paragraph 7 that
while finalizing the preliminary TP scheme, the Town Planning
Officer shall decide the road network as per the approved layout
plan of revenue survey no.296 and 297.
13.4 It is submitted that for survey no.298 the revenue
record reflected the total area admeasuring 27,417 sq. mtrs. It is
submitted that if one goes by the redistribution and valuation
statement, survey no.298 was 23,842 sq. mtrs. whereas, 787 sq.
mtrs. belongs to the State Government and 3360 sq. mtrs. to the
Corporation which makes a total of 27,989 sq. mtrs. If one considers
the 7/12 form, the total area of survey no. 298 shown is 27,417 sq.
mtrs. and therefore, 572 sq. mtrs. is in the excess. Therefore, the
issue would be as to how the Town Planning Officer would fit the
excess area. It is submitted that there is a common 7/12 form and
names of all the owners are reflected jointly. In the case of joint
holdings no demarcation and bifurcation is provided and the
allotment is with an endorsement that rights of owners in the final
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plot would be as per their proportionate shares in the original plot.
Under these circumstances, the owners were required to get the
Hissa Mapni done and once it is made available, the owners would
be allotted separate final plots.
13.5 It is next submitted that notice dated 28.03.2005 was
issued to all the land owners which has been duly served. One of the
co-owners submitted the reply and requested that she would be
filing the reply within 15 days. Similarly, another co-owner also
requested for allotment of the final plot in the original plot itself.
One another co-owner, namely, Pourus R. Mehta, petitioner in
another writ petition, has indicated that he had tried to get the
Hissa Mapni but the DILR had not done the survey because of the
objection by the other co-owner. It is submitted that the
requirement of DILR was pointed out since the year 2005, 2006 and
was not raised for the first time in the year 2021. Since the co-
owners were unable to provide Hissa Mapni, the Town Planning
Officer, has allotted a common plot to all the plot holders. Therefore,
since the year 2005 all the plot holders were aware about the
requirement; and as it was not fulfilled, decision has been taken.
13.6 It is submitted that the proceedings have been filed
between the parties. Even the writ petition being Special Civil
Application no.14177 of 2005 was preferred disputing the mutation
entries wherein, a reference is of the first appeal pending before this
Court. Even the mutation entries based on the registered sale deed
and more particularly, plot no.E/1 has been made subject to
ultimate outcome of the civil proceedings between the parties more
particularly, first appeal no.2188 of 2003. It is submitted that there
are litigation and disputes with respect to the ownership, location
and area of land between the parties. Therefore, unless the revenue
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records are reconciled by the petitioners and Hissa Mapni, that is,
land sub-divisional measurement is inter se resolved, the Town
Planning Officer cannot allot separate final plots to the land owners.
The contention as regards the objection by the Army is not the issue
to be raised by the petitioners. If at all any objection is raised, the
State Government will look into it.
13.7 It is submitted that in the second phase, notice dated
10.08.2021 was issued by the Town Planning Officer to the land
owners of survey no.298 which was responded to on 09.09.2021
and the owners are very much aware about the mistake. Another
objection was lodged on 04.10.2021 clearly stating that no DILR
Hissa Mapni has been done in their survey number, even if some of
them have got it done in their individual capacity it is not accepted
or binding to the other plot holders and it should not be considered
as formal Hissa Mapni of survey no.298.
13.8 It is submitted that it is always open for the petitioners
to have the final plots divided in terms of section 67A of the Act of
1976 after the preliminary TP scheme is sanctioned. It is submitted
that one of the co-owners of Special Civil Application no.19030 of
2022 in its reply had raised a concern that the owner of final plot
no.58/3 is showing the entire holding of road in his name as he has
wrongly executed the sale deed for the common road which is a
subject matter of challenge by way of first appeal no.2188 of 2003.
It is further submitted that even if one sees another response, the
co-owner states that the total area of private sub-plots does not
match the total area of the survey number and rightly so. It is
further submitted that similar such response has been given by
other co-owners.
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13.9 While referring to the convenience compilation, it is submitted
that the total area of survey no.298 was initially 27417 sq. mtrs.
which was, from time to time sold in favour of various parties
including the owners of the captioned writ petitions. It is further
submitted that consultation was done with the Town Planning &
Valuation department wherein, there is a specific instruction issued
that unless form no.11 and mapni sheet is submitted, separate final
plot cannot be allotted and in identical cases uniform policy shall be
adopted and has been adopted. It is submitted that notice came to
be issued on 14.10.2022 to the petitioners by the Town Planning
Officer for the purpose of hearing which was scheduled to be held
on 21.10.2022. On that day, representation was received. One of
the petitioners Mr P. R. Mehta, remained present pursuant to the
notice; however, he refused to sign the rojkam. It is submitted that
the writ petition being Special Civil Application no.22104 of 2022
was preferred before this Court wherein, liberty was granted to the
petitioner to approach the Town Planning Officer and accordingly, a
representation dated 21.10.2022, around 12 o’clock, was filed. The
contention that the Town Planning Officer, has overreached the
Court proceedings by passing order dated 27.10.2022 is misplaced
as the order of the High Court was received by the Town Planning
Officer through Senior Town Planner only on 27.10.2022.
13.10 It is next submitted that the petitioner of Special Civil
Application no.19030 of 2022 approached the office of the DILR.
After taking necessary steps, measurement was carried out in
presence of all the concerned, followed by drawing of the rojkam
evidencing the signature by all the persons; but stand is taken by
the office of the DILR that form no.11 and plot book of the subplots
of revenue survey no.298 cannot be issued, owing to the
discrepancy to the extent of 572 sq. mtrs. in the District Survey
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office record and the revenue record. Stand is also taken by the
office of the DILR that if all the joint holders give an application duly
signed mutually agreeing to the boundaries of their respective plots
aligning it with the District Survey office records, the Town Planning
Officer would have issued separate plots to each of the land owners.
The differences between the joint plot holders, needs to be resolved
as per the provisions of the Gujarat Land Revenue Rules, 1972
(hereinafter referred to as “the Rules of 1972”). It is submitted that
the petitioner of Special Civil Application no.19030 of 2022
approached the office of City Deputy Collector, who, in turn, has
addressed a letter remitting the matter in order to rectify the
revenue records under sub-rule (2) of Rule 21 of the Rules of 1972.
The petitioner was accordingly informed by the office of the DILR
vide communication dated 10.03.2023.
13.11 It is submitted that the Town Planning Officer has
declared its decision on 27.10.2022, followed by publication of the
decision on 01.11.2022. Besides, the decision of the Town Planning
Officer has been communicated to the land owners in the prescribed
form ‘J’ on 03.11.2022 and the notification of decision declared by
the Town Planning Officer was published in the Official Gazette on
11.11.2022. Scheme along with the decision shall be submitted to
the State Government under the provisions of section 64 for
sanction under section 65 of the Act of 1976. On receipt of the
preliminary TP scheme, the State Government may sanction it or
refuse to accord the sanction. It is also likely that the State
Government may make such modification as may in its opinion be
necessary for the purpose of correcting the error, irregularity or
informality in terms of the provisions of section 65 of the Act of
1976.
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13.12 It is next submitted that the contention about the
decision to be taken by the Town Planning Officer under section 46,
is misplaced as, the Town Planning Officer cannot resolve the
disputes related to the area of 572 sq. mtrs. The Town Planning
Officer may resolve the disputes related to the ownership by the
Special Officer who may be appointed; however, in the facts of the
case, the dispute relates to the internal sub-division of revenue
survey no.298 amongst the plot holders wherein, registered sale
deeds have been exceeded to an extent of 572 sq. mtrs. vis-a-vis
the area available in village form no.7/12. It is only the parties inter
se who can resolve the dispute and reconcile the area of the land
and have the Hissa Mapni done.
13.13 While inviting the attention of this Court to the decision
of the Town Planning Officer dated 27.10.2022 in the convenience
compilation (page 19), it is submitted that three stages of hearing
have taken place. The representations submitted by the petitioners
have been considered. After consulting the Chief Town Planner and
considering the objections of the petitioners, the decision has been
taken. Everything is a part of the decision making process.
Extensive exercise has been undertaken; and now, everything will
be examined by the State Government.
13.14 In Special Civil Application no.22104 of 2022, with
respect to survey no. 316 wherein, the issue is of laying down 12
meters town planning road from the middle of the petitioners’ land
bearing survey no. 316 and 294/2 and reservation being illegal, it is
submitted that 12 meter road across the survey no. 316 was
sanctioned under the draft TP scheme, and as per the provisions of
section 48, the road vests in the Corporation and the Corporation is
fully entitled to acquire it; however, numerous representations to
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the authorities were made objecting to laying down of the 12 meter
road. On one hand, while arguing for survey no. 298, the stand
taken by the petitioners is that adhere to the draft TP scheme;
however, there is serious objection to the draft scheme which has
been sanctioned considering the fact that the road is cutting across
the factory of the petitioners. Contention is also raised that try and
work out a scheme in such a manner that the structures are saved.
It is submitted that the consultation took place with the Chief Town
Planner wherein, it was required to consult the Corporation
considering the fact that the final plot no. 131 was allotted to the
Corporation and the Corporation was thereafter consulted which, in
turn, vide communication dated 03.08.2022 suggested to
reconstitute the final plot no. 131 in such a manner that the existing
borewell is not affected.
13.15 It is submitted that keeping in mind the consultation
with the Corporation and the Chief Town Planner, the Town Planning
Officer has realigned the 12 meter road passing through the
revenue survey no. 316 on the eastern side by 10 meters in order to
accommodate the GRUDA approved construction put up by the
petitioners and save the petitioners’ water resources as objected by
him. It is submitted that the petitioners had made a representation
dated 31.08.2021 wherein the petitioners have acknowledged the
change affected by the Town Planning Officer by stating that all the
constructed properties as per the proposal dated 16.02.2012 have
been saved. It is submitted that over and above the GRUDA
approved construction, even the bore of the petitioners has been
saved. Also, another representation dated 01.10.2021 was filed
wherein it has been recommended that some portion of the factory
of the petitioners has been saved. The tone and tenor of the
representation of the petitioners suggest that there shall not be any
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deduction at all. It is next submitted that in the revenue survey no.
316 only 26% deduction is proposed by the Town Planning Officer as
against the standard deduction of 30%, thus the contention of the
petitioners for 0% deduction cannot be accepted. As per the
remarks in the redistribution statement, it is expressly clarified that
remaining 4% deduction will be effected at the time of
redevelopment. It is submitted that suggestion of the petitioners to
realign the road (page no. 20-A) cannot be accepted inasmuch as,
the endeavor of the petitioners is to save the whole of the plot and
giving a deep curve to the 12 meter road. It is submitted that if the
request of all the parties is to be accepted, the object of preparation
of the Town Planning Scheme would not be achieved.
13.16 Adverting to the revenue survey no.296, it is submitted
that the request of the petitioner seeking final plot in lieu of survey
no.296/26/B is untenable considering the fact that the road
incorporated in the TP scheme in the said revenue survey number is
forming part of the layout plan of the year 1947 of the concerned
society. The said road is reconstituted as 9 meters town planning
road in preliminary TP scheme as per instruction no.7 of the
schedule of the sanctioned draft TP scheme dated 16.09.2004. It is
further submitted that since 1947, the said parcel of the land has
existed as the internal road of the society named Shantiniketan,
owing to the layout plan of the said society. It is submitted that
Hissa Mapni under form no. 12 of the plot holders of the society was
conducted wherein 26 plots were divided amongst the holders and
plot no. 26A and 27 admeasuring 101 and 3930 sq. mts.
respectively were shown as road and necessary entry has been
posted in revenue record. Besides, clause 7 of the sale deed
executed by all the plot holders of the society, condition was
mentioned agreeing to give an area of the land to be used for laying
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a common road. It is therefore submitted that the 9 meter road
proposed in the preliminary TP scheme on survey no. 296/26/B is as
per original layout plan and it is in consonance with condition no. 7
of the notification dated 16.09.2024.
13.17 While dealing with Special Civil Application no.22693 of
2022 with respect to final plot nos.314/2, 314/3 and 315, it is
submitted that the Town Planning Officer has allotted final plots in
their respective original plots considering their holdings and
ownership. Request is for deduction under the town planning
scheme to be carried out from revenue survey no.315 and the
petitioners, shall be given consolidated final plot in land bearing
survey no.314/1; but the redistribution form (page 222), suggest
that survey no.315 is of the joint ownership of the Abani
Construction Company and therefore, separate final plots to
different land holders, in absence of the Hissa Mapni, cannot be
granted which, was in tune with the circular dated 07.08.2020
issued by the Revenue Department. It is nobody’s case that the
Hissa Mapni was carried out with respect to survey no.315. During
the consultation process with the Chief Town Planner, the said
factum is substantiated, specifically opining that in all cases, where
original plots are of joint ownership, final plot shall be provided in
joint ownership, except in cases where authorized Hissa Mapni is
produced. The Town Planning Officer adhered to the policy and has
followed the uniform procedure across all the plot owners and in
absence of clear demarcation of the boundaries as per village form
no.7, common final plot has been allotted.
13.18 It is submitted that adjustment is sought considering the
green cover, the said request is not justified inasmuch as, as per the
field visit report of the joint committee constituted in connection
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with O.A. no.549 of 22, the trees in plot nos.312, 313, 322 and 323
fall under non-reserve categories of trees. While referring to the
convenience compilation, it is submitted that the bullet point no.2 it
is observed “during the visit it was found that the tree cutting is not
done in this land (plot nos.313, 322, 323), it was found that there is
clusters of Gaando Baawals (Prosopis Julifora) grown self and no
tree is cut in this land for SRFD project work”. Moreover, conclusive
remarks clearly specify that in plot nos.313, 322, 323, the trees
come under the non-reserve category of trees. It has been observed
that if felling of the trees is to take place then double the trees shall
be planted. Therefore, the stand taken by the petitioners about the
thick vegetation or green cover is not correct. Conscious efforts
have been made to ensure minimum damage to the existing trees
in the entire TP scheme ensuring appropriate compensatory
measures for growing more trees in consonance with the policy of
the State Government. Adverting to the aspect of social
infrastructure, it is submitted that consultation took place with the
Corporation and it is only after considering the standard deduction
of 30% across the town planning scheme, reservation for social
infrastructure has been considered in accordance with wide
categories provided in section 40(JJ)(iii) of the Act of 1976.
13.19 It is submitted that the petitioners (Special Civil
Application no.24962 of 2022) are owners of the revenue survey
nos.339, 340/1, 340/2, 342, 346, 349/1, 349/2 and 352 and the
lands are of the ownership of different individuals and entities. It is
submitted that the Town Planning Officer has allotted final plots to
the land owners in their respective original plots, considering their
holding and ownership. It is submitted that the stand taken by the
petitioners, is that requisite deduction may be effected in the survey
no.340/1, 340/2, 342 and 346 and they should be given a
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consolidated final plot adjoining to each other in the land bearing
survey no.349/1, 349/2 and 352 wherein, in one part, reservation for
urban forestry has been suggested. The said stand of the petitioners
cannot be accepted because the subject lands are of different
ownership and in the name of different individuals and entities and
therefore, allotting final plots to different holders of different lands,
would not be possible. Besides, the reservation of urban forestry is
in consultation, considering overall development and future
requirements of the area.
13.20 While concluding, it is submitted that the Town Planning
Officer has given multiple opportunities of hearing to the petitioners
as is clear from the record and the petitioners also have made
several representations offering several hearings by the Town
Planning Officer and therefore, the stand taken that no proper
opportunity of hearing is given, is absolutely ill founded and
unsubstantiable. The petition, therefore, deserves to be dismissed.
Re: Response of the Respondent Corporation
14. Mr Prashant G. Desai, learned senior counsel appearing with
Mr Rutul P. Desai, learned advocate, took this Court to the scope of
the Act of 1976, referring to judgment of the Apex Court in the case
of Maneklal Chhotalal & Others vs. M. G. Makwana reported in AIR
1967 SC 1373. The competency of the State Legislature to enact
measures were traced in entry no.18 of List II of VIIth Schedule and
includes “land” and entry no.20 of List III which is “economic and
social planning”. In continuation of the said submission, further
reliance is placed on the judgment in the case of State of Gujarat vs.
Shri Shantilal Mangaldas & Others reported in (1969) 1 SCC 504.
The Apex Court, inter alia, has held and observed that the scheme
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includes within its sweep, the provisions of lay out of plans, lay out
of new streets, roads, construction, diversion, extension, alteration,
improvement and stopping up of streets, roads and communications
etc. The powers and duties of Town Planning Officer have also been
discussed in great detail. It has been held that the object of the
scheme is to provide amenities for the benefit of the residents,
reduction of the area in the occupation of the individual holders of
land, for they have to contribute out of their plots, areas which are
required for maintaining the services beneficial to the community.
14.1 Further reliance is placed on the judgment in the case of
Girnar Traders vs. State of Maharashtra & Others reported in (2011)
3 SCC 1. The legislation in question before the Apex Court was
Maharashtra Regional & Town Planning Act, 1966 (for short “Act of
1966”). Considering the provisions of the Act of 1966 vis-a-vis, the
Land Acquisition Act, 1894, it has been held and observed that the
complete scheme has been provided under the MRTP Act for
attaining the object of planned development. Various provisions of
the Act comprehensively prescribe what and how the steps are
required to be taken by the authorities under the Act, right from the
stage of preparation of draft development plan to its finalization as
well as preparation and finalization of all regional and town planning
schemes. It has been further pointed out that there is no aspect
which is not dealt with or provided for under the provisions of the
State Act. Besides providing right of objection to the owner of the
land or property, the State Act also provides machinery for
finalization and determination of disputes between the authorities
and private parties. Furthermore, a person is entitled to raise all
disputes including the dispute of ownership.
14.2 It is further submitted that the provisions cover the aspect of
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development and planning and in the process individual may loose
some right; however, it is for the benefit of the community and
individual problems cannot be considered. The issues raised by the
petitioners, are individual and for that the provision is for making a
representation to the State Government under section 67A of the
Act of 1976 and therefore, in view of the effective alternative
remedy available, the issue cannot be determined in the writ
petition. It is further submitted that not one but two remedies are
available and for that purpose, the scheme cannot be put to hold
and the petitioners can very well avail of the alternative remedies. It
is conceded that the Corporation has committed a mistake in
providing separate plots at the time of preparation of the draft TP
scheme and ought to have allotted common plot.
14.3 It is further submitted that section 14 of the Act of 1976, is a
provision for inviting suggestions or objections to the draft
development plan and no hearing is provided save and except the
consideration by the authorities. Moreover, sub-section (3) of
section 17, envisages that the final development plan would be
binding on the Area Development Authority and all authorities
situated in the area. The 24 meters road, is sanctioned during the
preparation of the development plan and in view of the provisions of
sub-section (3) of section 17, it is binding on all the authorities.
14.4 It is further submitted that sub-section (3) of section 17
provides the binding effect of the development plan to all the
authorities including the Town Planning Officer. It is further
submitted that clause (JJ) of sub-section (3) of section 40, specifies
the percentage for the factors as enumerated therein but not for the
plots and therefore, reliance is misplaced. Section 41 provides for
declaration of intention of making the scheme. The Chief Town
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Planner is to be consulted and that is how the process of
consultation. Rule 17 of the Rules of 1979, provides for meeting of
owners and making of tentative proposal and the appropriate
authority explaining in such meeting the tentative proposals of the
draft TP scheme to the owners for eliciting public opinion and
suggestions on the said proposals and the appropriate authority,
may take into consideration all such suggestions as made and
objections raised on the proposal for the purpose of making the
draft TP scheme. It is thereafter, the town planning scheme is
prepared which, then, is sent to the State Government for the
purpose of its sanction, followed by the appointment of the Town
Planning Officer in terms of Section 50 of the Act of 1976 read with
Rule 24 of the Rules of 1979.
14.5 It is further submitted that reliance placed on clause (xi) of
sub-section (3) of section 52 of the Act of 1976, is also misplaced
inasmuch as, proviso carves out an exception for making variation
except the variation of substantial in nature which, is with the
previous sanction of the State Government and after hearing the
appropriate authorities and land owners. It is submitted that there is
no substantial variation as original area of the final plot is not
changed except the removal of plotting.
14.6 It is submitted that sub-rule (3) of Rule 26 of the Rules of
1979, is the provision for issuance of the notice in form ‘H’, followed
by opportunity of stating their views and after hearing, the Town
Planning Officer has to only take into consideration the views and
nothing more. Sub-rule (6) of Rule 26, by which the Town Planning
Officer has to record and enter in the scheme every decision given
by him in the prescribed forms ‘F’ and ‘G’ as indicated therein which
has been done in the present case, followed by the award. All the
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petitioners were heard; however, decision is not to be conveyed but
only the extract. It is submitted that the Town Planning Officer, in
terms of the provisions of Rule 26 has given its award; however, in
view of the status quo granted by this Court, the same has not been
sent to the State Government. It is further submitted that prayer to
quash the award and sent it to the Town Planning Officer for
hearing, is also untenable. Such contention has been raised only
with an intention to see that no town planning scheme is
implemented in the area. The request of remand also cannot be
considered as, the award is passed which may be right or wrong and
thus, filing of the writ petitions, is premature.
14.7 Reliance is placed on the judgment in the case of Goodluck
Trading Company vs. State of Gujarat & Others rendered in writ
petition being Special Civil Application no.3528 of 2016. The issue
before the Court, was seeking direction to the State Government to
consider the pending representation before sanctioning the
preliminary TP scheme. Accepting the submission of the State
Government about the petition being premature, this Court, did not
entertain it. Therefore, all the writ petitions are premature it having
filed before the State Government could apply its mind to the
decisions of the Town Planning Officer. It is further submitted that
while sanctioning the scheme under section 65 of the Act of 1976,
aspect of refusal of the sanction by the State Government is very
much involved and therefore, it implies application of mind.
14.8 It is submitted that reliance placed on the judgment in the
case of Kishanbhai Hargovandas Patel vs. State of Gujarat (supra), is
misplaced considering the fact that there was a major modification
without there being any opportunity of hearing to the plot holders
granted and therefore, the Hon’ble Court, while not accepting the
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submission of the appropriate authority, remanded the matter to
the State Government. It is submitted that everything would be
open before the State Government and the petitioners can file
objections which, can be considered by the State Government. It is
not the case of the State Government that it will not consider the
objections. Hence, efficacious remedy is available to the petitioners.
It is also likely that the State Government may hear the petitioners
and consider their objections and therefore, the doors, are not
closed of the petitioners for raising the objections.
14.09 It is submitted that the attempt on the part of the
petitioners of filing the writ petition is malicious considering the
events which took place. Consultation with the Chief Town Planner
was done on 05.03.2002, followed by the declaration on 20.05.2002.
It is submitted that the State Government gave its approval to the
draft TP scheme on 20.10.2003 and sanctioned it on 16.09.2004. In
the year 2022, the preliminary scheme, is in the process of being
sanctioned, hearing has been granted. During the sanctioning of the
preliminary scheme, objections are raised only with a view to seeing
that for another 20 years, the scheme is not sanctioned. It is
submitted that since the year 2002, 2004 and 2024, there are lot of
changes together with the development and therefore, one cannot
halt the development and steps are to be taken today at the
earliest.
14.10 It is submitted that the revised development plan was
sanctioned in the year 2014 together with the regulations vide
notification dated 20.12.2014 and in the said development plan, the
24 meter road, was allowed from Sabarmati riverfront to airport
circle passing through survey nos. 299, 398, 296, 297, 295 and
others. It is submitted that the road, since is provided in the
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development plan and as per section 40 of the Act of 1976, the town
planning scheme is to be made regard being had to the proposal in
the development plan. While referring to the Google Map, it is
submitted that Town Planning Scheme no.67, covers a large tract of
land including 24 meter roads which goes towards the Sabarmati
riverfront connecting the proposed bridge and therefore, the
argument that there is a blockage is misplaced. The 24 meters road,
is already forming part of the development plan of the year 2014
with a small blockage that, is also being taken care of by
negotiating with the Army so as to cope up the issue of traffic. There
are request made that owing to the objection and non-
implementation of the town planning scheme, the road is not fully
constructed and some of the residents are unable to connect to the
Sabarmati riverfront and hence, representations have been received
for opening of the road. It is submitted that there are umpteen
numbers of original and final plots involved in the town planning
scheme and the petitioners are concerned with either 20 or 15 final
plots and hence, it is not about only the petitioners but the mass
that is affected and involved in the town planning scheme. It is
further submitted that the Corporation, has also filed the reply
giving the details of the town planning scheme, the stages involved
and the steps taken.
14.11 Reliance is placed on the judgment in the case of
M.M.P. Charitable Trust Thr’ Its Managing Trustee vs. State of
Gujarat Thr’ Secretary & Others reported in (2005) 4 GLR 3340. This
Court, has taken a categorical view that town planning authorities
are the best persons having technical knowledge to propose a road
in a scheme and it is not for the Court to decide as to where the
road should be proposed, as it is not sitting as an appellate
authority against the decision taken by the expert body under the
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town planning scheme. It is submitted that interference would be
allowed only in two eventualities – fraud and decision is without
jurisdiction. Reliance is also placed on the judgment rendered in
Special Civil Application no.1608 of 1979. While considering the
newly amended Rule 21(3) of the Rules of 1979, this Court,
observed that the persons affected by any particulars of the scheme
are given opportunity of stating their views and making their
representation before the decision is taken by the Town Planning
Officer affecting their rights and at the same time, requirement of
issuing individual special notices is dispensed with. It is further
submitted that the Division Bench, has observed that principle of
natural justice, is not rigid rule and is aimed to secure justice and to
prevent miscarriage of justice. It operates only in the area not
covered by any law validly made.
14.12 It is submitted that in the case on hand, objections are
filed, notices are given under Rule 26(3) of the Rules of 1979 and
not only that, earlier also in the year 2005, 2016, 2019 and 2020,
notices were given to the petitioners and they have filed their
objections and when sufficient opportunity was given, it can’t be
termed as an arbitrary exercise of powers by the Town Planning
Officer. The Town Planning Officer has not only afforded opportunity
but has followed the procedure of giving notices to the petitioners.
While referring to the provisions of sub-rule (4) of Rule 26 of the
Rules of 1979, it is submitted that the word used is ‘considered’. It
states that the decision is to be taken after consideration of the
objections; however, it does not say as to the nature of the order to
be passed by the Town Planning Officer, either speaking or non-
speaking order. The decision taken, is to be communicated under
sub-rule (9) of Rule 26 of the Rules of 1979.
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14.13 Reliance is placed on the decision of the Bombay High
Court in the case of Rational Art and Press Private Limited vs. State
of Maharashtra passed in writ petition no.3008 of 2021. “Would
considered” has been interpreted. In paragraph 36, the Court has
discussed the term ‘considered’. It is submitted that decision is to
be taken after considering representation and decision can be ‘yes’
or ‘no’; however, it does not suggest as to the decision has to be a
speaking order or a non-speaking order and is to be communicated
under sub-rule (9) of Rule 26 of the Rules of 1979. Language
contained in section 28 of the Act of 1976 is very much similar and
it requires the planning authority after considering the report of the
planning committee and the suggestions or objections received by
it, modify or change the plan. It is submitted that Town Planning
Officer may take decision and may say ‘yes’ or ‘no’; however, there
is no further requirement except taking a decision. It is further
submitted that decision was taken and is to be communicated in
form ‘J’. Reading of form ‘J’, suggest that it is an intimation to the
recipient of the decision in the prescribed format which has been
communicated. There is total application of mind by the Town
Planning Officer which has been narrated in the extracts produced
by the State Government by way of the convenience compilation.
Entire procedure from declaration of intention to the decision of the
Town Planning Officer has been strictly followed and therefore, at
this stage, interference is uncalled for.
Re: Rejoinder by and on behalf of the petitioners
15. Mr Mihir Joshi, learned senior counsel assisted by Mr Amar D.
Mithani, learned advocate, in rejoinder, submitted that section 48
and 48A of the Act of 1976 provides for sanction of the draft scheme
by the State Government and the draft TP scheme provided by the
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Corporation, has been sanctioned by the State Government. Section
48A is a provision for vesting of a land in appropriate authority; the
Corporation, after submitting the scheme, has become functus
officio and therefore, to say that allotment of a separate plot, is a
mistake, is misplaced. Also, the State Government does not consider
it as a mistake or else the State Government would have returned
the scheme to the Corporation, seeking necessary rectification.
While referring to the page 19 of the convenience compilation, it is
submitted that it was not forming part of the affidavit. It is further
submitted that a detailed narratives have been recorded and
paragraph 11 is the decision but, the consideration is totally
missing. Entire arguments made by the State Government, is on the
basis of the correspondences and it may not be strictly relevant for,
this is not what the Town Planning Officer says. It establishes that
not a single objection has been taken into account. Also, not a line is
devoted to the objections raised by the petitioners and hence, there
is no consideration at all. It is further submitted that the reasons
cannot be added in the arguments and submissions.
15.1 It is further submitted that application was filed seeking Hissa
Mapni which, came to be rejected on 10.05.2022 and thereafter,
another application was filed somewhere in the month of July 2022;
however, without waiting for the Hissa Mapni, decision is taken on
27.10.2022. This Court, during the pendency of the writ petition,
vide order dated 29.11.2022, has directed the office of the DILR to
consider the application and undertake the exercise of Hissa Mapni
in respect of plots of survey no.298. Apropos which, the office of the
DILR has given its report dated 04.03.2023 to the Town Planning
Officer indicating that the consent of all the plot holders is not there;
however, the measurement sheet was prepared as per the
information given by the plot holders. Even the constructions have
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been indicated. It is further submitted that there is consent given by
all the plot holders and hence, now, the issue of demarcation of the
plot holders can be considered. It is submitted that the sale deed in
favour of the petitioners is not in question per se; the issue only is
as regards ownership and location of 347 sq. yards and as to
whether it passes through the land of the petitioners. Section 46, is
a provision which takes care of the disputed ownership to be
decided by the Town Planning Officer during the preparation of the
preliminary scheme; however, no such procedure has been
undertaken and hence, the Town Planning Officer has failed to
perform his statutory duties and without due consideration of the
objections, has arrived at a decision which requires reconsideration.
Clearly, section 46, envisages appointment of the officer by the
State Government for deciding as to who shall be deemed to be
owner for the purposes of the Act. Furthermore, the decision, is not
subject to appeal but shall not operate as a bar to a regular suit in a
court of competent jurisdiction with further provision under sub-
section (3) to correct, modify in accordance with the decree in the
event of a civil court passing such a decree. It is therefore submitted
that the stand taken by the State Government that the Town
Planning Officer cannot decide the dispute of the ownership is
incorrect.
15.2 It is submitted that the objections which are now raised are
not forming part of the reply filed on behalf of the respondent nos.1,
2 and 3. It is submitted that the rejoinder was filed by the
petitioners clearly taking stand that the Town Planning Officer has
not given a single reason in the decision. Contention was also raised
about the Hissa Mapni so also the stand taken by the plot holders
extending the cooperation. It is submitted that the objection was
raised also about 24 meter road passing through survey no.298. It
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was also pointed out that the construction of 24 meter road, would
completely destroy the built up structure of the petitioners in
existence since the year 1985.
15.3 It is further submitted that large number of land owners have
been given specific final plot and that too without any deduction at
all. The petitioners have also enumerated list of the land owners and
the petitioners being subjected to discriminatory treatment;
however, nothing has been considered. While referring to section
67A of the Act of 1976, it is submitted that it is not an alternative
remedy to fair consideration by the Town Planning Officer inasmuch
as, it is not a provision of appeal and hence, the submission that
there is an alternative remedy available is misconceived.
15.4 It is submitted that the larger the extent of the powers, the
greater is the mandate to ensure the compliance with the
procedure. It can’t be that exercise is condoned because it
subserves a higher public interest. Undisputedly, the Town Planning
Officer wields the vast powers and there is no doubt about it which
is the very reason why every steps which protects a citizen’s
interest must be scrupulously adhered to. Therefore, the contention
about the public interest prevailing over the private interest would
not apply to the facts of the present case. It is submitted that so far
as the road is concerned, it was during the consideration of the
scheme. The sanctioned revised development plan did not have the
road and hence, the draft TP scheme which was sanctioned on
16.09.2004 did not mention about the road and was introduced at
the time of sanctioning of the revised development plan in the year
2014 and the Town Planning Officer has sought to superimpose it on
the preliminary TP scheme and therefore, there is a room for the
objection to be raised by the petitioners. It is submitted that it is
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well settled principle laid down in the case of Mohinder Singh Gill
and Another vs. The Chief Election Commissioner, New Delhi &
Others reported in AIR 1978 SC 851 that the reasons can’t be
supplied by affidavit and therefore, on overall consideration, the
matter requires reconsideration by the Town Planning Officer.
16. Mr Rashesh Sanjanwala, learned Senior Counsel submitted
that the decisions were forming part of the writ petition either by
way of an affidavit or otherwise and have been placed for the first
time by way of convenience compilation to substantiate the action
taken by the Town Planning Officer. It is submitted that all the
decisions, five in number, with respect to the writ petition have
been taken on 27.10.2022. It is submitted that on 20.10.2022, the
writ petition was filed and was listed on 21.10.2022. Pertinently, the
enormity of the task have been performed between 21.10.2022 and
27.10.2022 i.e. five non-working days. It is submitted that had the
decisions been produced with the affidavit, the petitioners would
have an opportunity to deal with the same.
16.1 It is submitted that the stance taken by the State
Government is that the State Government shall consider everything
relying upon the provisions of the section 65, considering the fact
that the preliminary scheme will go to the State Government along
with the decision of the Town Planning Officer together with the
objections which shall be considered by the State Government and
the prayer of the petitioners for bifurcation and division, the remedy
available is under section 67A and therefore, no interference is
required. It is submitted that section 65 is absolutely no remedy. It
is submitted that at the stage of section 65, there is no participation
by the land owners and hence, it is difficult to fathom as to how the
grievance of the petitioners can be ventilated under section 65 of
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Act of 1976.
16.2 In the judgment in the case of Maneklal Chhotalal & Ors.
vs. M G Makwana & Ors. (supra), the Apex Court has discussed the
scheme. In the case on hand, the issue is about the rights of the
petitioners to ventilate and the obligation on the part of the Town
Planning Officer to take a decision. It is expected that the procedure
is to be followed and strictly adhered to and the petitioners are not
against the same, what is hurting the petitioners is non-observance
of the provisions of the Rules. It is submitted that in paragraph 45,
the Apex Court, has clearly held that reasonableness and
restrictions shall be decided both from the substantive and
procedural aspects. The stand taken by the authorities that no
notice or any hearing or any steps are required to be taken by them,
are all in the name of town planning and if such an argument is
accepted then, there will be uncontrolled and unguided powers
conferred on the authorities. It has been held and observed that if
an uncontrolled or unguided power is conferred without any
reasonable and proper standards or limits being laid down in the
enactment the statute may be challenged as discriminatory. It is
submitted that the review of the reasons may be limited but the
existence of the reasons has to be there and therefore, the stand
taken by the State Government that it is not supposed to
communicate the reasons is against the provisions of law.
16.3 In the case of State of Gujarat vs. Shantilal
Mangaldas(supra), the Apex Court in paragraph 14, has held and
observed that to ensure that no undue hardship is caused and
owners of plots are given opportunity of raising objections to the
provisions of the scheme and the power is conferred upon the Town
Planning Officer to entertain and hear objections against the
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reconstitution of the plots and matters related to the provisions.
Only after the objections have been heard and disposed of, the
scheme is published and becomes final. Emphasis is placed on the
words “heard and disposed of”. The provision of law which calls for
issuance of public notice and thereafter an opportunity to state the
views is also perceived as a right of hearing which confers an
opportunity under the principles of natural justice because no
person can be prejudiced.
16.4 Reliance is placed by authorities on the judgment in the
case of Ahmedabad Municipal Corporation vs. Green Belt Khedut
Mandal (supra). In paragraph 60, entitlement of filing objections and
personal hearing is emphasized. It is settled that personal hearing to
be given. It is further submitted that to say that the petitioners have
no right, flies on the face of it. The Courts have found and asked the
authorities to take a decision in accordance with law. In the
judgment in the case of Ishwarbhai Ganpatbhai Patel vs. State of
Gujarat reported in (2006) 1 GLR 758, this Court has categorically
held that being a matter of subjective satisfaction the town planning
authorities as well as the State Government must follow the
procedure established by law. In the judgment in the case of
Bhikubhai Vittalbhai Patel vs. State of Gujarat reported in (2008) 4
SCC 144, the Court has also dealt with the words “consider”. It has
been held that the term “consider” means to think over; it connotes
that there should be active application of the mind. In other words
the term “consider” postulates consideration of all the relevant
aspects of the matter.
16.5 It is submitted that after the preliminary TP scheme is
drawn by the Town Planning Officer, the same would be forwarded
to the State Government under section 64 of the Act of 1976 and
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the State Government upon receipt may sanction the preliminary
scheme or may refuse to sanction with modification. It is further
submitted that once the preliminary TP scheme is sanctioned, it
shall have the impact as if it were enacted in the Act. Therefore, at
the stage of submission of preliminary TP scheme by the Town
Planning Officer, the person affected can have only the right to raise
objection before the State Government but he may not have any
right of hearing. Therefore, only at the stage of preparing the
preliminary TP scheme, the person affected have a right to raise
objection and hearing as well which, is a valuable right given to the
owner or the persons affected and obligation and duty cast upon the
Town Planning Officer to give hearing; consider the objections and
give its decision. It is further submitted that non-compliance with
the issuance of the notice and giving of sufficient opportunity
contemplated in sub-rule (4) of Rule 26 of the Rules of 1979 affects
the right to property of the owner and shall be construed
mandatory. Compliance of sub-rule (4) of Rule 26, subserves the
principles of natural justice so as to avoid arbitrariness and to follow
just and procedure in terms of the mandate of Article 21.
16.6 It is further submitted that the total area involved of the
original plot was 23,842 sq. mtrs. If one adds land admeasuring 787
sq. mtrs. ULC land as well as land admeasuring 3,360 sq. mtrs.
reserved for water works, the total land admeasuring would be
28,989 sq. mtrs. While inviting attention to 7/12 form (page 712 –
Special Civil Application no.22104 of 2022), it is submitted that the
total land admeasuring shown is 27,417 sq. mtrs. Different khata
numbers are being assigned to the respective petitioners with the
demarcated area and hence, the petitioners have a clear
demarcation. It is further submitted that the Town Planning Officer,
on 29.01.2022, has addressed a letter (page 158 – Special Civil
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Application no.22104 of 2022) to the Corporation wherein, the
aspect of Hissa Mapni has been considered. It is submitted that
reference is made to the letter dated 31.12.2021 of the Chief Town
Planner which, inter alia, suggested that after taking all the
necessary details, steps shall be taken in terms of draft TP scheme.
The Town Planning Officer, has in terms of the said letter, requested
the Corporation to provide the opinion; however, now, the Town
Planning Officer, is going exactly contrary to the stand taken vide
letter dated 29.01.2022. It is further submitted that the Town
Planning Officer, thereafter, on 14.10.2022, addressed a letter to
the petitioners inviting objections and suggestions conveying the
details in the tabulated form (page 287). It is submitted that
consultation process, was still on despite which, the Town Planning
Officer has taken a decision on 27.10.2022.
16.7 Mr R. S. Sanjanwala, learned senior counsel, while
referring to the relevant notes on procedure (Special Civil
Application no.22104 of 2022) with respect to the land bearing
survey no.316, submitted that Corporation gave its consultation to
the proposal made by the Town Planning Officer. It is thereafter,
vide letter dated 10.08.2021 addressed by the Town Planning
Officer, survey no.316 was given final plot no.48 without there being
any division admeasuring 5382 sq. mtrs.
16.8 It is submitted that after the consultation, the road was
shifted. Notices were issued to respective survey nos.316, 298, 296,
297, 294/2, 294/3 requiring the recipient to inspect the tentative
preliminary scheme and to provide objections and suggestions. It is
further submitted that thereafter, on 19.01.2022, the Town Planning
Officer addressed a letter to the land owners, inter alia, informing
that after the consultation is received from the Corporation, the land
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owners would be informed and objections would be considered and
hearing would be provided. It is thereafter that the Town Planning
Officer sought consultation of the Chief Town Planner. It is thereafter
that the Town Planning Officer got changed. It is further submitted
that after the change in the incumbent, notices were issued;
however, it were never received by the petitioners. Once again,
consultation was sought by the Town Planning Officer and the
Corporation, provided the same and approved the map prepared by
the Town Planning Officer in its meeting dated 27.07.2022. It is
submitted that 12 meter road, came to be shifted. Position,
thereafter, got changed and road, was shifted dehors the
consultation. It is submitted that vide letter dated 19.01.2022 it was
sought to convey which was done only on 06.09.2022 fixing the
hearing on 16.09.2022 to lodge the objections and the petitioners,
thereafter, had submitted their representation on 21.09.2022. Again
on 28.09.2022, further notices were issued in connection with the
earlier notices asking the petitioners and the land owners to remain
present. Since the petitioners have received the notices, on
07.10.2022, request was made for time, indicating the health
issues. It is further submitted that on 14.10.2022, further notices
came to be issued calling upon the petitioners to remain present on
21.10.2022. For the first time, drastic changes were made in the
preliminary TP scheme. Notices for residential premises and factory
premises were also issued. On 21.10.2022, there was an interaction
with the Town Planning Officer which, is termed as an hearing. The
petitioners, thereafter, had approached this Court and order was
passed on 21.10.2022. When the petitioners went back, there was
no hearing provided except a brief interaction which issue, was
raised by addressing a letter dated 27.10.2022. It is submitted that
the Town Planning Officer who has taken the charge in the month of
May 2022 makes a substantial changes. What Corporation and Chief
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Town Planner have suggested, has not been considered and
decision has been taken in a hot haste.
16.9 It is submitted that the proposal, underwent a drastic
change and for the first time, communicated on 14.10.2022. Being
aggrieved, the petitioners preferred the writ petition ventilating the
grievance about the manner in which the Town Planning Officer was
undertaking process. This Court, was kind enough to issue notice on
21.10.2022 which factum, was brought to the notice of the Town
Planning Officer on 21.10.2022 at around 2 p.m. and thereafter at
05.00 p.m. the order of the court was made available. From
23.10.2022 to 26.10.2022 were the public holidays, despite which,
the Town Planning Officer took decision on 27.10.2022. It is
submitted that the petitioners have raised numerous objections
which, could not have been heard and decided on the last working
day of the Diwali Holiday by the Town Planning Officer. It is
submitted that the haste shown by the Town Planning Officer was
only an attempt to overreach the process of this Court after
becoming aware about the writ petition.
16.10 It is submitted that from the year 2005 till May 2021,
there was no deviation from the lay out in the draft TP scheme.
Notice was issued in the month of May 2021 inviting comments. It
was at that time, the petitioners learnt that the Town Planning
Officer has deviated from the lay out in the draft scheme and has
allotted final plots to the petitioners at scattered location which led
to the filing of the objection in the month of September 2021. Since
there was no response, representation was made in the month of
August 2022, reiterating their request to allot final plot in a cluster.
It is further submitted that the Town Planning Officer has given its
decision in form ‘J’ as per sub-rule (9) of Rule 26 of the Rules of
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1979. Out of the three communications, in form ‘J’, in two of which,
the decision is entirely blank. Besides, the remarks column is empty
and hence, it can be said that there is no decision taken on the
petitioners representation. It is further submitted that the town
planning scheme, has been formulated so as to facilitate the other
plot holders and hence, it would be impermissible to apply different
standards for different parties.
17. Heard the learned counsel assisted by the learned advocates
in the respective writ petitions.
Re: Discussion:
(i) Issues and grievances:
18. Detailed submissions and counter submissions have been
made in all the writ petitions. Set forth below is a summary of the
issues and grievances raised, together with the corresponding writ
petitions.
(i) That, exercise of allotting separate final plots was already
done while sanctioning the draft TP scheme by the State
Government which was not objected to by any of the plot holders.
The Town Planning Officer disregarding the draft TP scheme, has
allotted combined final plot with no demarcation, shape and size of
the boundaries and deduction mentioned. That, requirement of
Hissa Mapni raised by the Town Planning Officer is without any
statutory backing. Neither the Act nor the Rules make it a condition
precedent for allotting separate final plots. (In Special Civil
Application nos.21780 of 2022; 19030 of 2022 and 22104 of 2022)
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(ii) That, to provide a sufficiently wide road instead of 7.5 meter
road and to consider the common road area of survey numbers as
holding of all plot holders under the Act of 1976 with respect to the
land bearing survey no.298, Hansol. (In Special Civil Application
no.19030 of 2022)
(iii) That, laying down of the proposed 12 meter TP road passing
through the factory of the petitioners is arbitrary and illegal and it
needs further reconsideration. The Town Planning Officer has put
the reservation affecting the business of the petitioners. Provide
final plots in the original plots. (In Special Civil Application no.22104
of 2022)
(iv) That, 30 meter and 18 meter TP roads carved out from the
eastern and southern side of the revenue survey no.314/3 are not
proper so also, the land reserved for Sale For Residents (SFR) and
laying of 12 meter TP road. (Special Civil Application no.22693 of
2022)
(v) That, there is no provision which requires the allotment of
final plots only within the original plots. Seeking allotment of final
plots in one cluster is only for convenience since the lands have
been developed for residential use on the basis of the sanctioned
draft TP scheme. That, the deviation by the Town Planning Officer
and allotting final plots at a scattered location, without sufficient
opportunity of stating the views, suggests non application of mind
by the Town Planning Officer while giving the decision. (In Special
Civil Application no.24962 of 2022.
(vi) Some of the general issues raised are:
a) That, the Town Planning Officer ought to have exercised the
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powers under section 46 of the Act of 1976.
b) That, there is a breach of the provisions of Rule 26 of the
Rules of 1979.
c) That, there is complete non-compliance of the principles of
natural justice.
d) That, no sufficient opportunity, contemplated under the Rules
of 1979 have been given, injuriously affecting the right to property
of the owners.
e) That, the Town Planning Officer has shown undue haste in
taking the decision and has overreached the process of law
considering the fact that the Court has issued notice and grievance
was pending consideration. Besides, the issue of Hissa Mapni was
being considered by the revenue authorities.
19. On the other hand, in the writ petition being Special Civil
Application no.18142 of 2021, the direction is requested to the
respondent to commence the construction work of public roads
adjoining the final plot no.57/2 in accordance with the draft TP
scheme no.67.
Re: Scope of judicial review:
20. Considering the controversy and the nature of grievances
raised, so also the scope and object of the Act of 1976, it reminds
the Court of the celebrated judgment of the Apex Court in the case
of Tata Cellular vs. Union of India reported in (1994) 6 SCC 651.
Bernard Schwartz has been quoted in paragraph 82 and it reads
thus:-
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“82. Bernard Schwartz in Administrative Law, 2nd Edn., p. 584
has this to say :
“If the scope of review is too broad, agencies are turned
into little more than media for the transmission of cases to the
courts. That would destroy the values of agencies created to
secure the benefit of special knowledge acquired through
continuous administration in complicated fields. At the same
time, the scope of judicial inquiry must not be so restricted that it
prevents full inquiry into the question of legality. If that question
cannot be properly explored by the judge, the right to review
becomes meaningless. ‘It makes judicial review of administrative
orders a hopeless formality for the litigant…. It reduces the
judicial process in such cases to a mere feint.’Two overriding considerations have combined to narrow
the scope of review. The first is that of deference to the
administrative expert. In Chief Justice Neely’s words :
‘I have very few illusions about my own limitations
as a judge and from those limitations I generalize to the
inherent limitations of all appellate courts reviewing rate
cases. It must be remembered that this Court sees
approximately 1262 cases a year with five judges. I am not
an accountant, electrical engineer, financier, banker, stock
broker, or systems management analyst. It is the height of
folly to expect judges intelligently to review a 5000 page
record addressing the intricacies of public utility operation.’It is not the function of a judge to act as a superboard, or with
the zeal of a pedantic schoolmaster substituting its judgment for
that of the administrator.
The result is a theory of review that limits the extent to
which the discretion of the expert may be scrutinised by the non-
expert judge. The alternative is for the court to overrule the
agency on technical matters where all the advantages of
expertise lie with the agencies. If a court were to review fully the
decision of a body such as state board of medical examiners ‘it
would find itself wandering amid the maze of therapeutics or
boggling at the mysteries of the Pharmacopoeia’. Such a
situation as a state court expressed it many years ago ‘is not a
case of the blind leading the blind but of one who has always
been deaf and blind insisting that he can see and hear better
than one who has always had his eyesight and hearing and has
always used them to the utmost advantage in ascertaining the
truth in regard to the matter in question’.
The second consideration leading to narrow review is that
of calendar pressure. In practical terms it may be the more
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it is the pressure of the judicial calendar combined with the
elephantine bulk of the record in so many review proceedings
which leads to perfunctory affirmably of the vast majority of
agency decisions.””
21. It is celebrated proposition that the Court does not sit as a
Court of appeal, but merely reviews the manner in which the
decision was made. The Court does not have the expertise to
correct the decision. If the review of the decision is permitted, it will
be substituting its own decision without the necessary expertise
which itself may be fallible. It is by now well-settled that the purpose
of judicial review is to ensure that the individual receives a fair
treatment. Judicial review is not an appeal from a decision, but a
review of the manner in which the decision was made. It would be
wrong to say that the Court sits in judgment not only on the
correctness of the decision making process, but also on the
correctness of the decision itself.
22. In furtherance of the above principle, the issue which falls for
the consideration of this Court is that whether the action and
decision of the Town Planning Officer are flawed owing to non-
adherence of the provisions of the Act of 1976 and the Rules of
1979 in particular. Hence, before adverting to the issues and the
grievances, necessary would be to consider the provisions of the Act
of 1976, the Rules of 1979 and the judgments on issue.
(ii) Provisions of the Act of 1976 and the Rules of 1979:
23. The Act of 1976 is aimed at providing for planned and
controlled development and use of land in urban areas. Chapter II,
covers within its sweep manner of preparation of draft development
plan; the contents of draft development plan; publication thereof,
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coupled with inviting objections and suggestions to the draft
development plan to be considered. After following the procedure
under section 17, the State Government has the power to sanction
the draft development plan. Section 17 reads thus:
“17.Power of State Government to sanction draft development
plan. – (1) (a)On receipt of the draft development plan under
section 16, the State Government may, by notification,-
(i) sanction the draft development plan and the regulations so
received, within the prescribed period, for the whole of the area
covered by the plan or separately for any part thereof, either
without modifications, or subject to such modifications, as it may
consider proper; or
(ii) return the draft development plan and the regulations to the
area development authority or, as the case may be, to the
authorised officer, for modifying the plan and the regulations in
such manner as it may direct: Provided that, where the State
Government is of opinion that substantial modifications in the
draft development plan and regulations are necessary, the State
Government may, instead of returning them to the area
development authority or, as the case may be, the authorised
officer under this sub-clause, publish the modifications so
considered necessary in the Official Gazette along with a notice
in the prescribed manner inviting suggestions or objections from
any person with respect to the proposed modifications within a
period of two months from the date of publication of such notice;
or
(iii) refuse to accord sanction to the draft development plan and
the regulations and direct the area development authority or the
authorised officer to prepare a fresh development plan under the
provisions of this Act.
(b) Where a development plan and regulations are returned to an
area development authority, or, as the case may be, the
authorised officer under sub-clause (ii) of clause (a), the area
development authority, or, as the case may be, the authorised
officer, shall carry out the modifications therein as directed by
the State Government and then submit them as so modified to
the State Government for sanction; and the State Government
shall thereupon sanction them after satisfying itself that the
modifications suggested have been duly carried out therein.
(c) Where the State Government has published the modifications
considered necessary in a draft development plan as required
under the proviso to sub-clause (ii) of clause (a), the State
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Government shall, before according sanction to the draft
development plan and the regulations, take into consideration
the suggestions or objections that may have been received
thereto, and thereafter accord sanction to the drafts
development plan and the regulations in such modified form as it
may consider fit.
(d) The sanction accorded under clause (a), clause (b) or clause
(c) shall be notified by the State Government in the Official
Gazette and the draft development plan together with the
regulations so sanctioned shall be called the final development
plan.
(e) The final development plan shall come into force on such date
as the State Government may specify in the notification issued
under clause (d).
…….. …….. …….. ……..
(2) Where the draft development plan submitted by an area
development authority or, as the case may be, the authorised
officer contains any proposals for the reservation of any land for
a purpose specified in clause (b) or 2 [ clause (n) or clause (o)] of
sub-section (2) of section 12 and such land does not vest in the
area development authority, the State Government shall not
include the said reservation in the development plan, unless it is
satisfied that such authority would acquire the land, whether by
agreement or compulsory acquisition, within ten years from the
date on which the final development plan comes into force.
(3) A final development plan which has come into force shall,
subject to the provisions of this Act, be binding on the area
development authority concerned and on all other authorities
situated in the area of the development plan.
(4) After the final development plan comes into force, the area
development authority concerned may execute any work for
developing, re-developing or improving any area within the area
covered by the plan in accordance with the proposals contained
in the development plan.”
Sub-section (3) provides the binding effect of final
development plan. Reading of the provision suggest that subject to
the provision of the Act the final development plan shall be binding
on the area development authority and on all other authorities
situated in the area of the development plan.
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24. Variation has been provided in section 19 on proposal from
Area Development Authority or otherwise and if the State
Government is of the opinion that it is necessary in the public
interest to make any variation in the final development plan, the
same, can be done so by publishing it in the Official Gazette. Section
21 states that at least once in ten years from the date on which the
final development plan comes into force, the Area Development
Authority shall revise it after carrying out, if necessary, a fresh
survey and provision of sections 9 to 20, shall apply to such
revision. Chapter III provides for various provisions for declaration of
urban development areas and constitution of Urban Development
Authorities, so also powers and function of Urban Development
Authority. Chapter IV makes the provision relating to control of
development and use of land included in the development plans.
25. What comes next and relevant for the present purpose, is
Chapter V titled ‘Town Planning Schemes’. Section 40 deals with the
making and contents of the Town Planning Scheme. Sub-section (2)
provides for making of the town planning scheme in accordance
with the provisions of the Act in respect of any land (i) which is in
the course of development; (ii) likely to be used for residential or
commercial or industrial or building purposes or (iii) already built
upon. As per sub-section (3), town planning scheme may make
provision for the matters enumerated therein, such as, laying out or
relaying out of land; laying out of new streets or roads, construction,
diversion; etc.; the allotment of reservation of land for roads, open
spaces, gardens, recreation grounds, schools, markets, etc. Certain
percentage has been earmarked for roads, parks, playgrounds,
social infrastructure in clause (jj)(a) of sub-section (3) of section 40,
including the residuary clause (m).
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26. Section 42, speaks about making and publication of the draft
scheme. Section 44 speaks about contents of draft scheme.
Particulars, namely, the area; the ownership and tenure of each
original plot as well as the particulars of land allotted or reserved
under clause (e) of sub-section (3) of section 40 with a general
indication of the uses to which such land is to be put coupled with
the terms and conditions, proposal to alter the boundaries of
original plots; the estimate of the net cost of the scheme to be
borne by the appropriate authority together with full description of
all the details of the scheme, shall contain in the draft scheme.
Section 45, speaks about reconstitution of the plots. While, section
46, is about disputed ownership and it reads thus:
“46. Disputed ownership. – Where there is a disputed claim to
the ownership of any piece of land included in an area in respect
of which a declaration of intention to make a scheme has been
made and any entry in the record of rights or mutation relevant
to such disputed claim is inaccurate or inconclusive, an inquiry
may be held on an application being made by the appropriate
authority or the Town Planning Officer at any time prior to the
date on which the Town Planning Officer draws up the
preliminary scheme under section 51 by such officer as the
State Government may appoint for the purpose of deciding as to
who shall be deemed to be the owner for the purposes of this
Act.
(2) Such decision shall not be subject to appeal but it shall not
operate as a bar to a regular suit in a court of competent
jurisdiction.
(3) Such decision shall, in the event of a Civil Court passing a
decree which is inconsistent therewith, be corrected, modified or
rescinded in accordance with such decree as soon as practicable
after such decree has been brought to the notice of the
appropriate authority by the person affected by such decree.”
27. As per the provisions of section 46 of the Act of 1976, the
State Government may appoint the Town Planning Officer or the
appropriate authority for the purpose of deciding as to who shall be
the owner for the purposes of the Act. In other words, inquiry has
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been contemplated to decide the disputed ownership. Sub-section
(2), provides that it shall not operate as a bar to a regular suit in a
court of competent jurisdiction but shall not be subject to an appeal.
Sub-section (3) states that the decision taken, shall in the event of a
civil court passing a decree, which is inconsistent therewith be
corrected, modified or rescinded in accordance with such decree as
soon as practicable after such decree has been brought to the
notice of the appropriate authority by the person affected by such
decree.
28. Section 47 is a provision for lodging the objection to the draft
scheme by any affected person. Appropriate authority, is under an
obligation to consider such objection and before submitting the draft
scheme to the State Government, modify such scheme as it thinks
fit. Section 48, are the powers of the State Government to sanction
the draft scheme if submitted by the appropriate authority, with or
without modification or subject to conditions as it may think fit to
impose or refuse to sanction. In the case of hand the draft TP
scheme has been sanctioned vide notification dated 16.09.2004.
Moreover, as per section 48-A, all lands required by the appropriate
authority for the purposes specified in clauses (c), (f), (g) and (h),
shall vest absolutely in the appropriate authority free from all
encumbrances where a draft scheme has been sanctioned by the
State Government under sub-section (2) of section 48. Section 48-A,
reads thus:
“48-A. Vesting of land in appropriate authority. (1) Where a draft
scheme has been sanctioned by the State Government under
sub-section (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 clauses (c), (f),
(g) or (h) of sub section (3) of section 40 shall vest absolutely in
the appropriate authority free from all encumbrances.
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(2) Nothing in sub-section (1) shall affect any right of the owner
of the land vesting in the appropriate authority under that sub-
section.
(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 sub-section (2) of section 48” were
substituted.”
29. Section 49, puts a restriction on use and development of land
after declaration of a scheme. Section 50, speaks about the
appointment of the Town Planning Officer. Section 51, deals with
duties of the Town Planning Officer. Section 52 speaks about the
contents of the preliminary and final scheme. Section 52 is
reproduced hereinbelow for ready reference.
“52. Contents of preliminary and final scheme. (1) In a preliminary
scheme, the Town Planning Officer shall,-
(i) after giving notice in the prescribed manner and in the
prescribed form to the persons affected by the scheme, define
and demarcate the areas allotted to, or reserved for, any public
purpose, or for a purpose of the appropriate authority and the
final plots;
(ii) after giving notice as aforesaid, determine in a case in which a
final plot is to be allotted to persons in ownership in common, the
shares of such persons;
(iii) provide for the total or partial transfer of any right in an
original plot to a final plot or provide for the transfer of any right
in an original plot in accordance with the provisions of section 81;
(iv) determine the period within which the works provided in the
scheme shall be completed by the appropriate authority.
(2) The Town Planning Officer shall submit the preliminary scheme
so prepared to the State Government for sanction and shall
thereafter prepare and submit to the State Government the finalPage 76 of 130
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scheme in accordance with the provisions of sub-section (3).
(3) In the final scheme, the Town Planning Officer shall,-
(i) fix the difference between the total of the values of the original
plots and the total of the values of the plots included in the
scheme in accordance with the provisions of clause (f) of sub-
section (1) of section 77;
(ii) determine whether the areas used, allotted or reserved for a
public purpose or purposes of the appropriate authority are
beneficial wholly or partly to the owners or residents within the
area of the scheme;
(iii) estimate the portion of the sums payable as compensation on
each plot used, allotted or reserved for a public purpose or for the
purpose of the appropriate authority which is beneficial partly to
the owners or residents within the area of the scheme and partly
to the general public, which shall be included in the costs of the
scheme;
(iv) calculate the contribution to be levied under sub-section (1) of
section 79, on each plot used, allotted or reserved for a public
purpose or for the purpose of the appropriate authority which is
beneficial partly to the owners or residents within the area of the
scheme and partly to the general public;
(v) determine the amount of exemption, if any, from the payment
of contribution that may be granted in respect of plots exclusively
occupied for religious or charitable purposes; (vi) estimate the
increment to accrue in respect of each plot included in the
scheme in accordance with the provisions of section 78;
(vii) calculate the proportion of the contribution to be levied on
each plot in the final scheme to the increment estimated to
accrue in respect of such plot under subsection (1) of section 79;
(viii) calculate the contribution to be levied on each plot included
in the final scheme;
(ix) determine the amount to be deducted from, or added to, as
the case may be, the contribution leviable from a person in
accordance with the provisions of section 79;
(x) estimate with reference to claims made before him, after
notice has been given by him in the prescribed manner and in the
prescribed form, the compensation to be paid to the owner of any
property or right injuriously effected by the making of the town
planning scheme in accordance with the provisions of section 82;
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(xi) draw in the prescribed form the preliminary and the final
scheme in accordance with the draft scheme:
Provided that the Town Planning Officer may make
variation from the draft scheme, but no such variation, if it is of a
substantial nature, shall be made except with the previous
sanction of the State Government, and except after hearing the
appropriate authority and any owners who may raise objections.
Explanation :- (i) For the purpose of this proviso “variation
of a substantial nature” means a variation which is estimated by
the Town Planning Officer to involve an increase of ten percent. in
the costs of the scheme as is described in section 77 on account
of the provisions of new works or the allotment of additional sites
for public purposes included in the preliminary scheme drawn up
by the Town Planning Officer.
(ii) If there is any difference of opinion between the Town Planning
Officer and the appropriate authority as to whether a variation
made by the Town Planning Officer is of substantial nature or not,
the matter shall be referred by the appropriate authority to the
State Government whose decision thereon shall be final.”
30. Enormous powers are wielded in the Town Planning Officer
who after giving notice in the prescribed manner and in the
prescribed form to the persons affected by the scheme, define and
demarcate the areas allotted to, or reserved for, any public purpose,
or for a purpose of the appropriate authority and the final plots. Sub-
clause (ii) provides that after giving notice, determine in a case in
which a final plot is to be allotted to persons in ownership in
common, the shares of such persons. Further sub-clause (iii)
provides for the total or partial transfer of any right in an original
plot to a final plot or to provide for the transfer of any right in an
original plot in accordance with the provisions of section 81. It
further gives powers to Town Planning Officer to deal with the final
plots, its allotment, demarcation, transfer of any rights in an original
plot etc. Sub-section (2) deals with submission of the preliminary
scheme so prepared to the State Government for sanction, followed
by preparation of final scheme in accordance with the provisions of
sub-section (3).
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31. Clause relevant and touches the issues and submissions, is
sub-clause (xi) of sub-section (3) and it says about drawing of the
preliminary and final scheme in accordance with the draft scheme in
the prescribed form. Proviso states that the Town Planning Officer
may make variation from the draft scheme but no such variation, if
it is of a substantial nature, shall be made except with the previous
sanction of the State Government and except after hearing the
appropriate authority and any owners who may raise objections. The
expression ‘variation of substantial nature’, has been further
explained through the explanation which means variation estimated
by the Town Planning Officer to involve an increase of ten percent in
the costs of the scheme as described in section 77 or Rupees one
lakh which ever is low on account of the provisions of new works of
the allotment of additional sites for the public purpose included in
the preliminary scheme. Provision is also made in sub-clause (ii) of
sub-section (1) of referring the matter to the appropriate authority
in case of difference of opinion as to whether the variation is of a
substantial nature or not.
32. Section 62, makes the decision of Town Planning Officer final
and binding on the parties, where no appeal has been presented
under section 54 in respect of the matter as indicated therein. The
preliminary scheme, would be thereafter, submitted to the State
Government for its sanction together with the copy of its decision
under sub-section (2) of section 52. Section 65, reads thus:
“65. Power of the State Government to sanction or refuse to
sanction the scheme and effect of sanction.- (1) On receipt of
the preliminary scheme or, as the case may be, the final
scheme, the State Government may-
(a) in the case of preliminary scheme, within a period of two
months from the date of its receipt, andPage 79 of 130
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(b) in the case of a final scheme, within a period of three
months from the date of its receipt, by notification, sanction
the preliminary scheme or the final scheme or refuse to give
sanction, provided that in sanctioning any such scheme, the
State Government may make such modifications as may, in its
opinion, be necessary for the purpose of correcting an error,
irregularity or informality.
(2) Where the State Government sanctions the preliminary
scheme or the final scheme, it shall state in the notification-
(a) the place at which the scheme shall be kept open for
inspection by the public, and
(b) a date in which all the liabilities created by the scheme
shall come into force:
Provided that the State Government may from time to time
extend such date, by notification, by such period, not
exceeding three months at a time, as it thinks fit.
(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.
(4)The appropriate authority shall, after the preliminary
scheme is sanctioned by the State Government under sub-
section (2), complete the execution of such scheme within a
period of two years from the date of the sanction of such
scheme, failing which the State Government may take such
actions against appropriate authority as it deems fit.”
33. The State Government, has the power either to sanction or
refuse to sanction the scheme. The provision is that on receipt of
the preliminary scheme or as the case may be the final scheme, the
State Government may, inter alia, in the case of a preliminary
scheme, sanction or refuse to give sanction. The State Government
is authorized to make such modification as in its opinion be
necessary for the purpose of correcting an error, irregularity or
informality. Sub-section (3) deals with the effect of the sanction and
it provides that 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 the Act. It is well-settled
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principle of law that once the scheme is sanctioned by the State
Government, it becomes the part of the Act.
34. The effect of the preliminary scheme is provided in section 67.
It states that on the day on which the preliminary scheme comes
into force, all lands required by the appropriate authority shall,
unless it is otherwise determined in such scheme, vest absolutely in
the appropriate authority free from all encumbrances. Sub-clause
(b) states that all rights in the original plots which have been
reconstituted into final plots shall determine and the final plots shall
become subject to the rights settled by the Town Planning Officer.
Section 68, gives a power to the appropriate authority to evict
summarily inasmuch as, on and after the date on which the
preliminary scheme comes into force, no person is entitled to
occupy any land.
35. Section 67A, prescribes the manner of resolution after the
scheme is sanctioned. The committee so constituted is empowered
to define the share of the joint holders and demarcate the area that
may be allotted to the joint holders. As per sub-section (3) of section
67A, the decision of the committee shall be deemed to be the part
of the scheme sanctioned under section 65. Section 67A reads thus:
“67A. Manner of resolution of grievances after sanctioning
scheme (1) In case where the final plot is allotted in joint
ownership in the Manner of sanctioned preliminary or final
scheme, then on application being made to the Committee by any
of the joint owners, the Committee constituted under sub-section
(2) shall give a notice to all the concerned and after giving them
an opportunity of scheme. being heard, shall with respect to such
final plot define the share of the joint holders and demarcate the
area that may be allotted to each of them.
(2) The committee shall consist of the following members,
namely:-
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(i) the Secretary, Urban Development and Urban Housing
Department, shall be the Chairman;
(ii) the Chief Town Planner, – Member Secretary, ex-officio; and
(iii) any other member, appointed by the Chairman.
(3) The decision of the Committee in this regard shall be deemed
to be the part of the scheme sactioned under section 65.”
36. Having dealt with the provisions of the Act, a brief reference
of the Rules of 1979, would be apt. In exercise of the powers
conferred under section 118, the State Government has framed the
Rules of 1979 covering the matters as indicated therein viz., the
mode and manner of publication of declaration under section 41;
meeting of owners and framing of tentative proposals for the
purpose of making a draft scheme under section 42; publication of
draft scheme under section 42. Rule 23, makes a provision for the
procedure where the ownership is disputed and the officer
appointed to hold an inquiry under section 46 shall while the inquiry
is proceeding, record a minute of the proceedings, the decision and
the reasons for the decision.
37. Rule 26, is a most relevant provision, that is, the procedure to
be followed by the Town Planning officer, inter alia, under sub-
section (1) of section 52. It reads thus:
“26. Procedure to be followed by Town Planning officer under
section 51 and under sub-section (1) of section 52.- (1) For the
purpose of preparing the preliminary scheme and final scheme
the Town Planning Officer shall give notice in Form H of the date
on which he will commence his duties and shall state therein the
time, as provided in Rule 37 within which the owner of any
property or right which is injuriously affected by the making of a
Town Planning Scheme shall be entitled under section 82 to
make a claim before him. Such notice shall be published in the
Official Gazette and in one or more Gujarati newspapers
circulating within the area of the appropriate authority and shall
be pasted in prominent places at or near the areas comprised inPage 82 of 130
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the scheme and at the office of the Town Planning Officer.
(2) The Town Planning Officer shall after the date fixed in the
notice given under sub-rule (1), continue to carry on his duties as
far as possible on working days and during working hours.
(3) The Town Planning Officer shall, before proceeding to deal
with the matters specified in section 52, publish a notice in Form
H in the Official Gazette and in one or more Gujarati newspapers
circulating within the area of the appropriate authority. Such
notice shall specify the matters which are proposed to be
decided by the Town Planning Officer and State that all persons
who are interested in the plots or are affected by any of the
matters specified in the notice shall communicate in writing their
objections to the Town Planning Officer within a period of twenty
days from the publication of notice in the Official Gazette. Such
notice shall also be pasted at the office of the Town Planning
Officer and of the appropriate authority and the substance of
such notice shall be pasted at convenient places in the said
locality.
(4) The Town Planning Officer shall give every person interested
in any land affected by any particular of the scheme sufficient
opportunity of stating their views and shall not give any decision
till he has duly considered their representations if any.
(5) If during the proceedings, it appears to the Town Planning
Officer that there are conflicting claims or any difference of
opinion with regard to any part of the scheme, the town Planning
Officer shall record a brief minute in his own hand setting out the
points at issue and the necessary particulars, and shall give a
decision with the reasons therefor. All such minutes shall be
appended to the scheme.
(6) The Town Planning Officer shall record and enter in the
scheme every decision given by him. The calculations and
estimates shall be set out and recorded in Form F, Form G and in
other statements as may be prepared by the Town Planning
Officer.
(7) The scheme as drawn up by the town Planning Officer shall
include particulars specified in rule 21 read with section 52.
(8) The component parts of the scheme shall be so arranged that
they may be readily referred to in connection with the map and
plans.
(9) The Town Planning Officer shall publish the scheme drawn up
by him by notification in the Official Gazette in Form I and also by
means of an advertisement in one or more local newspapersPage 83 of 130
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announcing that the scheme shall be open for the inspection of
the public during office hours at his office and communicate
forthwith the decisions taken by him in respect of each plot to
the owner or person interested, by the issue of the requisite
extract from the scheme in Form J and Form K as the case may
be. The Town Planning Officer shall also inform the President of
the Board of Appeal about the publication of final scheme.”
38. As per sub-rule (1), the Town Planning Officer shall give notice
in Form ‘H’ of the date on which he commences his duties and shall
state the time, as provided in Rule 37 within which the owner of any
property or right which is injuriously affected by the making of a
Town Planning Scheme shall be entitled under section 82 to make a
claim. The notice is to be published in the Official Gazette and in the
local daily’s having a circulation in the area. Additionally, the notice,
is to be pasted at the prominent places at or near the areas
comprised in the scheme and at the office of the Town Planning
Officer. As per sub-rule (2), it will be open for the Town Planning
Officer to carry his duties on working days and during working
hours. As per Sub-rule (3), the notice published in Form ‘H’ shall
specify the matters which are proposed to be decided by the Town
Planning Officer requiring all persons interested in the plots or
affected by any matters specified, to file their objections within the
stipulated period.
39. Sub-rule (4) makes a provision for giving every person
interested in any land or affected by any particulars of the scheme,
sufficient opportunity of stating their views. It also provides that the
Town Planning Officer shall not give any decision till he has
considered the representation. Sub-rule (5) speaks about recording
of a brief minute in his own hand, setting out the points at issue, if
during the proceedings, it appears to the Town Planning Officer that
there are conflicting claims or any difference of opinion with regard
to part of the scheme. The Town Planning Officer shall thereafter,
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give a decision with the reasons therefor. Minutes, shall be
appended to the scheme. Sub-rule (6) states that the Town Planning
Officer shall record and enter in the scheme every decision given by
him coupled with the calculations and the estimates recorded in
Form F, Form G and in other statements. The scheme drawn up by
the Town Planning Officer shall include particulars specified in Rule
21 read with section 52 as per sub-rule (7) of Rule 26. Rule 21,
provides for the particulars, namely, index map on a scale, the area
included in the scheme and the surrounding within reasonable limit
on all sides of such areas; all existing roads; means of
communication of every kind, etc. As per sub-rule (iv) of Rule 21, a
plan is to be prepared on a scale showing the boundaries of the
plots as they will appear after the final scheme is executed with
their numbers and illustrating by means of colours, letters and
explanatory notes or in some other convenient manner all such
provisions of the scheme as per the sub-rule (iv) of Rule 21. A
redistribution and valuation statement in Form ‘F’ showing the
estimated amounts to be paid to or each of the owners included in
the scheme.
40. Sub-rule (9) of Rule 26 is also crucial for the present purpose.
It states that the Town Planning Officer shall publish the scheme
drawn up by him by notification in the Official Gazette in Form ‘I’
and also by means of an advertisement in one or more local
newspapers announcing that the scheme shall be open for the
inspection for the public during office hours. It also obligates that
the Town Planning Officer to communicate forthwith the decisions
taken by him in respect of each plot to the owner or person
interested, by the issue of the requisite extract from the scheme in
Form ‘J’ and Form ‘K’ as the case may be. Information is to be
provided by the Town Planning Officer to the State Government
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about the publication of final scheme. Form “J” is reproduced
hereunder for ready reference:
“FORM J
[SEE RULE 26(9)]
GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT
RULES,1979.
Town Planning Scheme No…….
PRELIMINARY
I send herewith the extracts of the decisions taken by me
in respect of the original Plot No…………….. of the above scheme
taken in accordance with sub-section (1) of section 52 of the
Gujarat Town Planning and Urban Development Act, 1976 for
information to you as required under sub-rule (9) of rule 26 of the
Gujarat Town Planning and Urban Development Rules, 1979.
Sr. Original Area of Plot No. of Area of final Remarks
No. Plot No. Original Plot final plot plot allotted
in sq. mt. allotted in sq. mt.
This preliminary scheme is being submitted to
Government for sanction in accordance with sub-section (2) of
Section 52 of the Gujarat Town Planning and Urban Development
Act, 1976.
TOWN PLANNING OFFICER,
TOWN PLANNING SCHEME.
Date: –
I have further to inform you as under :-
(1) The rights of the mortgagor or mortgagee on the Original Plot
No. are transferred to the Final Plot allotted against the Original
Plot.
(2) All the rights of the passage on the lands merged in the Final
Plot are hereby extinguished unless such rights are preserved in
column No. 16 of the Form F of the Scheme.
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(3) The Tenure of the Final Plot will be as per the tenure of the
Original Plot. Any agreement in respect of the Original Plot in
between you and the appropriate Authority or the Government
are transferred to the Final Plot with the modifications regarding
the area allotted in the Final Plot.
(4) unless decided otherwise you will be permitted to remove the
trees, compound wall, barbed wire, huts sheds and other
materials from the original plot within one month of the date on
which the preliminary scheme comes into force or the date fixed
by the Government subject to condition that by doing so you will
have to fill in all the holes resulted on account of removing the
trees and other materials.
(5) Any other matter.”
41. Rule 27, speaks about the manner of drawing of the
preliminary scheme and shall contain relevant plans and forms with
details referred to in Rule 21 and the decisions recorded by the
Town Planning Officer under sub-section (1) of section 52.
Therefore, the provisions of the Act of 1976 and the Rules of 1979,
provides for a robust mechanism put in place by the legislature in
the matter of planned and controlled development of the area.
(iii) Judgments on issue:
42. It is pertinent to examine, albeit briefly, some judicial
pronouncements relied upon by the respective parties and relevant
for the present purpose.
43. The Apex Court, in the case of State of Gujarat vs. Shri
Shantilal Mangaldas & Others (supra), has observed that in making
a town planning scheme, the lands of all persons covered by the
scheme are treated as if they are put in a pool. It is then the Town
Planning Officer proceeds to reconstitute the plots for residential
buildings and to reserve the lands for public purpose. It has been
further noted that the Town Planning Officer may lay out new roads,
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divert or close existing roads, reserve lands for public purpose and
shall also provide for amenities. The Apex Court, has clearly noted
that the object of the scheme being to provide amenities for the
benefit of the residents generally the area in the occupation of the
individual holders of land is generally reduced, for they have to
contribute out of their plots, areas which are required for
maintaining the services beneficial to the community. Relevant
paragraphs 12 to 14 are set out hereunder for ready reference:
“12. In making a town-planning scheme the lands of all persons
covered by the scheme are treated as if they are put in a pool.
The Town Planning Officer then proceeds to reconstitute the plots
for residential buildings and to reserve lands for public purposes.
Reconstituted plots are allotted to the landholders. The
reconstituted plots having regard to the exigencies of the scheme
need not be of the same dimensions as the original land. Their
shape, and size may be altered and even the site of the
reconstituted plot allotted to an owner may be shifted. The Town
Planning Officer may lay out new roads, divert or close existing
roads, reserve lands for recreation grounds schools, markets,
green belts and similar public purposes, and provide for drainage,
lighting, water-supply, filling up or reclamation of low-lying,
swamp. or unhealthy areas or leveling up of land so that the total
area included in the scheme may conduce to the health and well-
being of the residents. Since the town-planning scheme is
intended to improve the sanitary conditions prevailing in a
locality, the owners of plots are required to maintain land open
around their buildings. The object of the scheme being to provide
amenities for the benefit of the residents generally the area in the
occupation of the individual holders of land is generally reduced,
for they have to contribute out of their plots, areas which are
required for maintaining the services beneficial to the community.
13. Under the Act the cost of the scheme is to be met wholly or
in part by contributions to be levied by the local authority on each
plot included in the final scheme calculated in proportion to the
increment which is estimated to accrue in respect of each plot.
14. To ensure that no undue hardship is caused and owners of
plots have an opportunity of raising objections to the provisions of
the scheme including its financial provisions, power is conferred
upon the Town Planning Officer to entertain and hear objections
against the reconstitution of the plots and relating to matters
specified in Section 32 i.e. the physical, legal and financial
provisions of the scheme. Only after the objections have been
heard and disposed of, the scheme is published and becomesPage 88 of 130
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final.”
44. Sections 53 and 67 of the Bombay Town Planning Act, 1955,
were declared ultra vires insofar as the provisions authorized the
authority to acquire lands under the TP scheme by the High Court.
The State, was in appeal which was allowed by the Apex Court,
setting aside the judgment of the High Court.
45. Yet in another decision in the case of Ahmedabad Municipal
Corporation and another vs. Ahmedabad Green Belt Khedut Mandal
(supra), a writ petition was filed before the High Court by the Khedut
Mandal, challenging the draft revised development plan and for
direction to the appellants to acquire their lands. In view of the
amendment in the year 1999 and insertion of section 40(3)(jj), the
vires of section 12 and section 40(3)(jj) were also challenged. The
writ petition, was partly allowed by the High Court but in appeal
before the Apex Court, the judgment of the High Court was set aside
to a limited extent. Paragraphs 40, 45, 46 and 54 are reproduced
hereinbelow for ready reference:
“40. As we have explained hereinabove that the town planning
scheme provides for pooling the entire land covered by the
scheme and thereafter re-shuffling and reconstituting of plots, the
market value of the original plots and final plots is to be assessed
and authority has to determine as to whether a land owner has
suffered some injury or has gained from such process. Re-
constitution of plots is permissible as provided under the scheme
of the Act as is evident from cogent reading of Section 45(2)(a)(b)
(c) and Section 52(1)(iii) in accordance with Section 81 of the Act
1976. By re-constitution of the plots, if anybody suffers injury, the
statutory provisions provide for compensation under Section
67(b) read with Section 80 of the Act 1976. By this re-constitution
and readjustment of plots, there is no vesting of land in the local
authority and therefore, the Act provides for payment of non-
monetary compensation and such a mode has been approved by
the Constitution Bench of this Court in Shantilal Mangaldas
(supra), wherein this Court has held that when the scheme comes
into force all rights in the original plots are extinguished, and
simultaneously therewith ownership springs in the re-constituted
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plots. It does not predicate ownership of the plots in the local
authority, and no process – actual or notional – of transfer is
contemplated in that appropriation. Under clause (a) of Section
53, vesting of land in local authority takes place only on
commencement of scheme into force. The concept that lands vest
in a local authority when the intention to make a scheme is
notified, is against the plain intendment of the Act. Even steps
taken by the State do not involve application of the doctrine of
eminent domain.
45. Article 300-A of the Constitution though creates a human right
being a constitutional provision, but is not a fundamental right.
Article 300-A provides that no person can be deprived of his
property except by authority of law. The Town Planning Act is
definitely an authority of law by which a person is deprived of his
property if we assume that the town planning scheme deprives a
person of his property, though it is not so in view of the
judgments of this Court in Shantilal Mangaldas (supra) and
Prakash Amichand Shah (supra).
46. So far as the question that upon lapsing of designation under
the development plan under Section 20 there cannot be any
reservation/designation under a town planning scheme for the
same land, is to be understood reading the provisions of the Act
1976 cogently. The development plan is prepared under Chapter
II and town planning scheme is made under Chapter V. Therefore,
they are two different things. The development plan is a macro
plan for a vast area wherein a town planning scheme is minor
scheme within the town. Section 40(1) simply provides that in the
making of town planning scheme the authority has to have regard
to the final development of the plan, if any. Thus, the words
“having regard to the development plan” in Section 40 means
that town planning scheme cannot disregard or ignore the
designation/reservation made in the development plan.
54. Section 40 of the Act 1976 contains the words “regard being
had” and thus it suggests that while the condition specified
therein are to be taken into consideration they are only a guide
and not fetters upon the exercise of power.”
The Apex Court, has held and observed that the
development plan is a macro plan for the vast area wherein
the TP scheme is at the micro level. It has been also pointed
out that sub-section (1) of section 40 simply provides that in
the making of the TP scheme, the authority has to have
regard to the final development plan. The Apex Court, has
interpreted the expression “having regard to the development
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plan” to mean that town planning scheme cannot disregard or
ignore the designation/reservation made in the development
plan. It has also been held and observed that the words
“regard being had to” suggests that while the condition
specified therein are to be taken into consideration they are
only a guide and not fetters upon the exercise of power.
46. In the case of M.M.P. Charitable Trust vs. State of Gujarat
(supra), the writ petition was filed by the trust before this Court,
praying for quashing and setting aside the part of the town planning
scheme which provided a road through playground of the school
owned by the petitioner trust. The petition came to be dismissed.
Provisions of Section 17(3) of the Act of 1976 were considered and it
has been held that a final development plan is binding on the Area
Development Authority concerned and on all other authorities
stationed in the area of development plan. Contention was raised by
the petitioner therein that the road can easily pass through another
plot which was acquired for the pumping station as the land, was
lying unused. This Court, held that it is ultimately for the town
planning authorities who are the best persons having technical
knowledge to propose a road in the scheme and it is not for the
Court to decide as to where the road should be proposed in the town
planning scheme inasmuch as, the Court is not sitting as appellate
authority against the decision taken by an expert body under town
planning Act. Paragraph 6 reads thus:
“6. Heard the learned advocates appearing on behalf of the
parties. It is not in dispute that there is a Final Town Planning
Scheme and on finalisation of which the Town Planning Road is
provided to pass through the lands originally belonging to the
petitioner. It is also not in dispute that the petitioner is allotted
Final Plot No. 60 admeasuring 17230 sq.mtrs., and Final Plot No.
61 admeasuring 886 sq.mtrs., of land against original holding of
22056 sq.mtrs., of land. Thus, the major portion of the land of the
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of land. It is required to be noted at this stage that the entire
Town Planning Scheme is implemented and the Town Planning
Road is laid down except the disputed portion of the land in
question only, i.e., the road passing through the original Survey
No. 213 and 216(1+2) and 212/B i.e., 3940 sq.mtrs. of land for
which the present Special Civil Application is filed. It is also
required to be noted that apart from the fact that the Town
Planning Scheme has become final, even in the development
plan also there is a road proposed which is as per the present
final Town Planning Scheme. Considering the provisions of
Section 17(3) of the Town Planning Act, a final development plan
is binding on the Area Development Authority concerned and on
all other authorities stationed in the area of development plan.
The only and main contention on behalf of the petitioner is that
the road in question can easily pass through the Final Plot No.61
which was originally acquired for a Pumping Station and the said
Final Plot No.61 is at present lying unused which is just adjacent
to the school and therefore the respondent Corporation ought to
have accepted the application submitted by the petitioner for
variation to that extent. It is required to be noted that it is the
contention on behalf of the respondent Corporation, and so
stated in the impugned resolution that the Final Plot No. 61 is
included in the land acquisition proceedings for drainage
pumping station for Surat Municipal Corporation and that on the
said land there is a slaughter house, ST Stand, Godown etc., and
in the Final Plot No. 65 there are houses which are constructed
where some persons are residing and therefore if the proposal of
the petitioner is accepted it is likely to affect other constructed
houses on open piece of land provided in the Town Planning
Scheme, and taking into consideration the above aspect a
conscious decision has been taken by the respondent
Corporation not to go for variation of the scheme. Considering
the above, it cannot be said that the decision of the Town
Planning Committee of the Corporation in rejecting the
application of the petitioner for variation of the scheme is in any
way arbitrary and/or malafide. It is required to be noted that it is
ultimately for the Town Planning Authorities who are the best
persons having technical knowledge to propose a road in the
scheme and it is not for the Court to decide as to where the road
should be proposed in the Town Planning Scheme. This Court is
not sitting as an appellate authority against the said decision
taken by an expert body under the Town Planning Act.”
47. In the case of Ishwarbhai Ganpatbhai Patel vs. State of Gujarat
(supra), the issue was, whether it is obligatory on the part of the
State Government to provide hearing to the petitioners therein while
giving sanction to the revised development plan under the
provisions of clause (c) of sub-section (1) of section 17. Also,
whether it is obligatory on the part of State Government to supply
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copies of objections and suggestions to the petitioners before its
finalization. The provisions of Chapter II of the Act of 1976, inter
alia, dealing with preparation and publication of the draft
development plan, were considered and it has been held and
observed that reservation as per the provisions of the Act of 1976
for any particular land is envisaged under section 12 of the Act
keeping in mind the need of the society and the future
development. Every planning presupposes the need in future.
Always therefore, reservation as per section 12(2)(e) should be
made keeping in mind the need and necessity of society in future.
Town planners must have a good foresight but this subjective
satisfaction of the town planning authority as well as of State
Government must follow the procedure established by law. Relevant
paragraphs, read thus:
“9.Having heard the learned counsels for the rival parties and
looking to the facts and circumstances of the case, I am of the
opinion that the notification dated 2nd September, 2004 issued by
the State Government is true, correct, legal and in consonance
with the provisions of Gujarat Town Planning and Urban
Development Act, 1976 for the following facts and reasons:
vi) It has been held by this Court in para-9 of the judgment in the
case of Kikabhai Ukabhai Patel & Ors. V/s. State of Gujarat & Ors.
reported in 1988(1) GLR 569 as under:
9. So far as second contention is concerned, it must be stated that
nowhere in the Act, it has been prescribed to give any personal
hearing to an objector. At the stage of publication of the draft
development plan and even at the stage of publication of
substantial modification, suo motu proposed by the State
Government, while being called upon to sanction the development
plan, members of the public have been given an opportunity to
object. Once their objections are received, they are required to be
considered by the concerned authority but there remains no
question of giving any personal hearing to such objectors. This is
contraindicated by the scheme of the Act and it also stands to
reason. There can be hundreds of such objections. If personal
hearing is to be given to all such objectors, sanctioning of the plan
can never be completed for decades and thus the very
prescription of time limit provided by the rule making authority
would be rendered nugatory. It is not in dispute that thePage 93 of 130
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petitioners were given ample opportunity to file their written
objections to be proposed development plan and their objections
were considered by the authority. Consequently, the second
contention has also to be rejected. (emphasis supplied)Thus, from the aforesaid judgment, it is clear that once
objections are invited and considered, there is no need of giving
personal hearing to such objectors. “Personal hearing” looking to
the provisions of sec. 17(1)(c) of the Act and also under the
provisions of sec. 14 of the Act, is impliedly ousted. Therefore, it
has been observed in the aforesaid paragraph that it is contra-
indicated by the scheme of the Act and it also stands to reason
that there can be hundreds of such objections if personal hearing
is to be given to such objectors and process of sanctioning of plan
can never be completed for decades and the very description of
the time limit provided by the rule making authority would be
rendered nugatory. In the facts of the present case also, enough
opportunities were given to the petitioners to raise their
objections and suggestions. Objections and suggestions were
given by the petitioners once under section 14 of the Act of 1979.
Similarly objections and suggestions were given by the Municipal
Corporation of the city of Surat under sec. 17 of the Act of 1979
and the State Government has considered all these objections and
suggestions under sec. 17(1)(c) of the Act and has given final
sanction to the draft development plan, whereby the proposed
modification in revised draft development plan, has been dropped
by the State Government. Merely because the State Government
has published the proposed modification as per proviso to section
17(1)(a)(ii) of the Act of 1976, it gives no additional right to the
petitioners to receive objections and suggestions, given by the
objectors in pursuance of that notification under sec. 17 of the Act
of 1976. Merely because the proposed modification has been
suggested by the Government, no additional right is vested in the
petitioners, neither of personal hearing nor of getting copies of
objections and suggestions given by other persons. Looking to the
scheme of the Act and looking to the aforesaid judgment of this
Court, no personal hearing is envisaged and the objections filed
by one party are not required to be given to other party even
when the proposed modification is published either under sec. 15
of the Act, 1976 or under the proviso to section 17(1)(a)(ii) of the
Act of 1976. The modifications are possible at two different
stages. One at the hand of the Area Development Authority under
section 15 of the Act and another at the hand of the State
Government under the proviso to sec. 17(1)(a)(ii) of the Act. In
both these eventualities, further objections and suggestions ought
to be invited. But that gives no separate or additional right to any
of the persons of hearing or of getting copies of suggestions and
objections, (filed by others) when any modification is accepted, by
the Area Development Authority or when the proposed
modification is dropped, by the Area Development Authority or
when the proposed modification is accepted by the State
Government or when the proposed modification is dropped by the
State Government.
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(x) It is also contended by the learned advocate for the petitioners
that the reservation for much longer period affects the petitioners’
right of property if there is a need of sewage treatment plant in
the year 2021. In the affidavit-in-reply of the respondent no. 3 as
well as of the State, there is no present need or necessity for the
imposition of the reservation upon the land in question, especially
under sec. 12(2)(e) of the Act, 1976. This contention is also not
accepted by this Court for the reason that every development
plan remains in force generally for 10 years as per sec. 21 of the
Act, 1976 and thereafter as per the provisions of the Act, it should
be revised by the Area Development Authority. The need of
reservation can be continued looking to the facts of the case. In
the facts of the present case, in special civil application no. 13987
of 2005, the reservation was there from 1986 and therefore, if it is
extended even after 1996, for a further period of 10 years, then it
debars the petitioner from the sale or development of the said
property. This attractive contention is legally not sound and is
incorrect. The reservation as per the provisions of the Act of 1976,
for any particular land is envisaged under sec. 12 of the Act,
keeping in mind the need of the society and the future
development. The Act, 1976 is pertaining to Town planning. Every
planning presupposes the need in future. Always therefore,
reservation, as per sec. 12(2)(e), should be made keeping in mind
the need or necessity of society in future. Town planners must
have a good foresight. But this subjective satisfaction, of Town
Planning Authority as well as of State Government, must follow
the procedure established by law. If the Area Development
Authority decided that the sewage treatment plant is necessary
on the particular land, it has to invite objections (under section
13) and thereafter it has to consider the objections (under sec.
14). If area Development Authority thinks, that substantial
modification, is required again objections are required to be
invited (under sec. 15). In the facts of the present case, Area
Development Authority has not proposed any modification so far
as reservation of the land is concerned. Now, State Government
will receive revised Draft Development Plan with suggestions and
objections (under sec. 16). At this stage, Government –
(a) has power to sanction the draft development plan (or revised
draft development as the case may be); or
(b) has power to refuse to sanction the draft development plan (or
revised draft development plan) and to direct the Area
Development Authority to prepare, a fresh, draft development
plan); or
(c) has power to return, the draft development plan (or revised
draft development plan) to the Area Development Authority for
modification; or
(d) ……..”
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48. Heavy reliance is placed by the learned counsel for the
Corporation on the judgment rendered in Special Civil Application
no.1608 of 1979. Rule 21 was considered which provided for a
detailed procedure to be followed by the Town Planning Officer. The
language of sub-rule (3) of Rule 21, pre-amendment and post-
amendment was considered and it has been held and observed that
the amendment in sub-rule (3), was on the basis of certain
observations made by the Division Bench in the case of Mohanlal
Jesingbhai vs. P. J. Patel, reported in 11 G.L.R. 1035. The Division
Bench, pointedly observed that from the language of amended sub-
rule (3), it is apparent that issuance of special notice is dispensed
with but at the same time, ample opportunity is to be given to the
affected person to make the representation to the Town Planning
Officer. It has also observed that person affected by any particulars
scheme are given opportunity of stating their views and making
their representation before decision is taken by the Town Planning
Officer affecting their rights and at the same time, requirement of
issuing individual special notices is dispensed with. In the judgment,
it has been held and observed that, “after the amendment of sub-
rule (3) notice to each and every interested person is not required to
be issued. Notices, are required to be published in newspapers,
official gazette and the office of the Town Planning Officer and of
the local authority. The substance of the notice is required to be
posted at the convenient places in the locality. Hence, non issuance
of the special notice would not vitiate the proceedings of the Town
Planning Officer.” The Division Bench, has observed thus:
“Further It would be difficult for us to accept the contention that
the procedure prescribed under amended sub-rule (3) of Rule 21
violates the principles of natural justice. It is well established that
the phrase “principle of natural justice” is not a rigid rule, Its aim
is to secure justice and to prevent miscarriage of justice. It
operates only in the areas not covered by any law validly made.
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In the case of Chairman, Board of Mining Examination vs. Ramjos,
AIR 1977 Supreme Court 965, Krishna Iyer,J., speaking for the
court, observed:-
“Natural justice is no unruly horse, no lurking land mine, nor a
judicial cure-all. If fairness is shown by the decision-maker to the
man proceeded against, the form, features and the fundamentals
of such essential processual propriety being conditioned
circumstances breach of by of the such facts situation, justice
natural complained of. Unnatural can expansion and no be of
natural justice, without reference to the administrative realities
and other factors of a given can be exasperating. We can neither
be finical nor finatical but should be flexible yet firm in this
jurisdiction.”
Therefore, how an opportunity of hearing to the affected persons
is to be given is to be determined by the procedure prescribed
under the Act or the Rules framed under the Act. As per rule
21(3), tha procedure prescribed is/air because it exhaustively
provides for publication of notice at various placas including the
office of the Town Planning Officer, Municipality, in the
newspapers and at convenient places in the said locality. It
enables the affected persons to lodge their objections. The
amended rule dispenses with service of special notice to the
individual person. May be, this rule is amended considering the
magnitude of the work which the concerned Town Planning
Officer is required to do. Only because issuance of special notice
to the affected persons is dispensed with will not bre be a for
holding ground that sub-rule violative of principle of natural
justice.”
Re: Decision making process and the powers exercised by
the Town Planning Officer
49. Having thus discussed the provisions of the Act of 1976 and
the Rules of 1979 and the judicial pronouncements, one needs to
keep in mind that Town planning is a subject which requires many
factors to be taken into account. Though it is a micro planning, it
involves countless considerations by the Town Planning Officer. In
the present case the town planning scheme encompasses a huge
parcel of land admeasuring about 11,82,000 sq. mtrs. covering
approximately 245 revenue survey numbers. Approximately 220
plots have been reconstituted in the award of the preliminary TP
scheme. Hence, preparation of the town planning scheme is a
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gigantic task and in the process, it is likely to affect the rights and
interests of many stakeholders. With a view to balancing those
rights and interests, the provisions are made of inviting objections
and suggestions and taking of the decision by the Town Planning
Officer. Having regard to the magnitude of the scheme and the
diverse interest of stakeholders involved, the core issue that arises
is, whether it would be practicable for the Town Planning Officer to
redress all the grievances raised by each stakeholders in
accordance with their individual expectations. Answer would be in
the negative inasmuch as, addressing concern of one stakeholder
undoubtedly may potentially prejudice or adversely impact the
interest of another. With a view to taking care of such a situation,
various provisions are made, protecting the interest of the
stakeholders and at the same time giving full powers and authority
to the Town Planning Officer to take decision in consultation with
the Chief Town Planner and the Corporation and when experts are
involved in the decision making process, it would not be prudent for
the Court to suggest how the plots are to be allotted; where and
how the roads are to be laid down; the width of the road;
connectivity, so on and so forth, except the limited inquiry to find
out the manner in which the decision was taken.
50. At the outset, it may be noted that in the case on hand, the
draft TP scheme was sanctioned on 16.09.2004 and for almost 16
years, nothing happened. In the interregnum, in the absence of
finalization of the preliminary TP scheme, the stakeholders have
adjusted or acted as per the draft TP scheme and would be under
the belief that nothing is going to change. This Court, is mindful of
the fact that preparation of the preliminary TP scheme is a
herculean task but, at the same time, it does not mean that the
finalization is prolonged for almost 16 years. Perceptibly, after 16
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years, the Town Planning Officer came into action and started
issuing notices to the land owners inviting objections and
suggestions in connection with the tentative reconstitution of the
plots. Decision was followed which, is the subject matter of
challenge in the captioned writ petition. In the case on hand, the
grievances, raised and recorded in the preceding paragraphs, are of
allotting separate final plots; reconsidering the decision of laying
down of 24 meter, 30 meter and 18 meter of roads; allotting the
plots at one place instead of scattered location; shifting of the
alignment of 12 meter road, so on and so forth.
51. Keeping the scope of inquiry in the forefront, it is necessary to
examine the nature of the powers exercised by the Town Planning
Officer and the decision rendered and duly communicated to the
petitioners in accordance with Rule 26 of the Rules of 1979. Rule 26
has been discussed in the preceding paragraph. The provisions are
elaborated in the following terms:-
i. Sub-rule (1) of Rule 26 speaks about the notice in Form H of
the date on which the Town Planning Officer shall commence his
duties and other aspects as contained therein.
ii. The Town Planning Officer, before proceeding to deal with the
matters specified in section 52 publish a notice in Form H as
indicated therein and shall specify the matters which are proposed
to be decided by him and require all the persons interested in the
plots or are affected shall communicate in writing their objections to
the Town Planning Officer within 20 days.
iii. Sub-rule (4) speaks about the sufficient opportunity of stating
the views to the persons interested with a rider that the TownPage 99 of 130
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Planning Officer shall not give any decision till he has duly
considered their representation.
iv. In the event there are conflicting claims or any difference of
opinion with regard to any part of the scheme, it is a duty cast upon
the Town Planning Officer to record a brief minute in his own hand,
setting out the points at issue and necessary particulars and then
shall give a decision with the reasons therefor.
v. Sub-rule (6) obligates the Town Planning Officer to record and
enter in the scheme every decision given by him.
vi. The scheme drawn by the Town Planning Officer shall include
the particulars specified in Rule 21 read with section 52.
vii. Sub-rule (9) requires the Town Planning Officer to publish the
scheme drawn up by him by notification in the official gazette in
Form I and by other means as indicated therein. The scheme shall
be open for the inspection of the public during the office hours.
viii. The next stage is communication of the decision taken by him
in respect of each plot to the owner or person interested by the
issue of requisite extract from the scheme in Form J and Form K.ix. Therefore, sub-rule (5) states about the decision by the Town
Planning Officer. Sub-rules (6), (7) and (8) are the steps to be taken
by the Town Planning Officer with regard to the decision taken. Sub-
rule (9) speaks about communication of the decision taken by him
by issuing requisite extract from the scheme in Form J and Form K.
Therefore, the Town Planning Officer is to notify the requisite extract
from the scheme in the respective forms.
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52. For the above purpose, it is apposite to take a birds eye view
of the procedure followed and notices issued to the petitioners in all
the writ petitions and responses, as the same warrants
consideration:
Re: Notice issued by the Town Planning Officer to the land owners
inviting objections and suggestionsSr. Writ petition number Date of the Notice Date of Response by the
No. petitioner1 SCA no.21780 of 2022 28.03.2005 – pg. 363 of 15.04.2005 – petitioner
the writ petition remained present2 SCA no.19030 of 2022 28.03.2005 – pg. 316 of –
the writ petition
3 SCA no.22104 of 2022 28.03.2005 – pg. 835 of –
the writ petition
4 SCA no.22693 of 2022 28.03.2005 – pgs. 182 & Representation dated
184 of the writ petition 17.06.2005
5 SCA no.24962 of 2022 28.03.2005 – pgs. 49 & –
85 of the writ petition
Re: Notice issued to the land owners inviting objections & suggestions
with respect to tentative reconstitution of the plots
Sr. Writ petition Date of the Notice Objection/s by the
No. number petitioner/s
1 SCA no.21780 of 10.08.2021 – pg. 174 objections by the
2022 pgs.167/365 in the writ Power of Attorney of the
petition petitioner
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2 SCA no.19030 of 10.08.2021 – Pgs. 140, 145, 147, 151,
2022 pgs.134/318 in the writ 155, 157, 159, 160
petition objections by the petitioner
– Mr Pourus R. Mehta
3 SCA no.22104 of 10.08.2021 – pg. 133 objections by the
2022 pgs.131/837 in the writ petitioners
petition
4 SCA no.22693 of (i) 09.08.2021 – pg.44/187 –
2022 in the writ petition
(ii) 09.08.2021 - pg.46/189 pg. 48, 56, 58, 59,
in the writ petition objections by the petitioner
(iii) 09.08.2021 - pg.191 in pg. 65 objections by the
the writ petition petitioner
5 SCA no.24962 of (i) 09.08.2021 - pg.53/87 in pg. 56 objections by the
2022 the writ petition petitioners
(ii) 09.08.2021 - pg.89 in pg. 56 objections by the
the writ petition petitioners
(iii) 09.08.2021 - pg.91 in pg. 56 objections by the
the writ petition petitioners
Re: Public Notice in the local newspaper to the land owners inviting
objections and suggestions with respect to tentative reconstitution
Sr. Writ petition number Date of the Notice
No.
1 SCA no.21780 of 2022 14.09.2021 – pg. 371 of the writ petition
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2 SCA no.19030 of 2022 14.09.2021 – pg. 324 of the writ petition
3 SCA no.22104 of 2022 14.09.2021 – pg. 841 of the writ petition
4 SCA no.22693 of 2022 14.09.2021 – pg. 203 of the writ petition
5 SCA no.24962 of 2022 14.09.2021 – pg. 98 of the writ petition
Re: Individual notices to the land owners inviting objections and
suggestions before declaration of decision
Sr. Writ petition Date of the Notice Objection/s by the petitioner/
No. number s
1 SCA no.21780 of (i) 07.09.2022 – pg. 369 of pg. 225 objections by the
2022 the writ petition petitioner
(ii) 28.09.2022 – pg. 229/370 pg. 230 letter by the
of the writ petition petitioner
2 SCA no.19030 of (i) 07.09.2022 – pg. 296/322 pg. 297 letter/objection by
2022 of the writ petition the petitioner
(ii) 28.09.2022 – pg. 323 of –
the writ petition
3 SCA no.22104 of (i) 07.09.2022 – pg. 839 of –
2022 the writ petition
(ii) 28.09.2022 - pg. 840 of -
the writ petition
4 SCA no.22693 of (i) 07.09.2022 - pg. 123, pg. 125, 128 letter/objection
2022 126/197 of the writ by the petitioner
petition
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(ii) 28.09.2022 – pg. 129/199, pg. 131, 134 letter/objection
130/200 of the writ by the petitioner
petition
5 SCA no.24962 of (i) 07.09.2022 – pg. 65/93 of –
2022 the writ petition
(ii) 28.09.2022 - pg. 95, 96 of -
the writ petition
Re: The following are the details of the steps taken, namely, (i)
Notification of declaration of decision published in newspaper; (ii)
Decision of the Town Planning Officer communicated to the land
owner in prescribed Form ‘J’; (iii) Notification of the decision
declared by the Town Planning Officer and published in the Official
Gazette after the decision dated 27.10.2022 of the Town Planning
Officer under Rule 26(9) of the Rules of 1979.
Sr. Dates Particulars
No.
1 27.10.2022 The Town Planning Officer has declared its
decision
2 29.10.2022 and The Notification of declaration of decision was
published in newspapers
01.11.2022
3 03.11.2022 and The decisions of the Town Planning Officer were
04.11.2022 communicated to the land owners in the
prescribed Form 'J'
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4 11.11.2022 Notification of the decision declared by the Town
Planning Officer was published in the Official
Gazette
53. Therefore, notices have been issued to the petitioners stage
wise and the objections by the petitioners. In continuation of the
above, the issues referred to in the paragraph 18, are dealt with
hereinbelow petition-wise.
(i) Special Civil Application no.21780 of 2022
54. One of the grievances raised by the petitioners is that in the
draft TP scheme, the petitioners were allotted separately earmarked
plots and of which, there was no objection and hence, the Town
Planning Officer while framing the preliminary TP scheme, ought not
to have combined the plots with no demarcation or boundaries
specified, as the Town Planning Officer is under an obligation to
draw preliminary TP scheme in terms of draft TP scheme.
55. It is not in dispute that survey no.298, is possessed by various
plot holders and was totally admeasuring 27,417 sq. mtrs. and out
of total area, 787 sq. mtrs. of land belong to the State Government
by virtue of the ULC proceedings and another 3,360 sq. mtrs. land is
acquired by the Corporation and of which, there are separate entries
reflected in the village form no.7. Remaining area, would be 23,271
sq. mtrs. The record reveals that remaining area is of the private
ownership with 10 account holders and land holding of the
Corporation. If one considers the submission of the individual
account holders, as per the village form no.7, the total area would
be 27,986 sq. mtrs. which accedes by 572 sq. mtrs. which also, has
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remained undisputed.
56. The draft TP scheme was sanctioned on 16.09.2004 and in the
year 2005, the issue of Hissa Mapni was raised. It is surprising to
note that after the year 2005, for almost 16 years, no steps were
taken. Everything triggered somewhere in the year 2021, when the
notices came to be issued to the land holders. The representations
were filed. The process, continued thereafter. Notices and the
response continued. Ultimately, in the month of October 2022, Town
Planning Officer took the decision whereby, the plots were combined
and one final plot, was allotted.
57. It is not in dispute that there are no separate 7/12 forms
issued and the names of the plot holders continued to be reflected
in the common 7/12 forms. The Town Planning Officer has given its
decision on 27.10.2022, inter alia, observing that as per the 7/12
form, 787 sq. mtrs. of original plot no.58/3 is a ULC land of the State
Government. Another 3,360 sq. mtrs., original plot no.58/1 has been
acquired by the Corporation and rest of the land admeasuring
23,271 sq. mtrs., is of the joint ownership. The Town Planning
Officer, has stated that there is no measurement undertaken or
Hissa Form produced and hence, no separate final plots are allotted.
One of the notes suggest that right of the land holders, would be
proportionate to their rights in the revenue record.
58. The decision taken by the Town Planning Officer has been
placed on the record by way of a compilation. During the course of
the hearing, the learned counsel for the petitioners have made
submissions dealing with the decision of the Town Planning Officer.
The decision records the aspects, namely, (i) the stage of
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sanctioning of the draft TP scheme (ii) steps taken after the draft TP
scheme was sanctioned, (iii) the stage of receiving the objections
from the petitioners (iv) the stage of tentative reconstitution of the
preliminary TP scheme and the objections received pursuant
thereto, (v) the proposal before the decision of the preliminary TP
scheme; (vi) the stage of consultation, (vii) stage of objections
received from the petitioners and stakeholders and lastly, (viii) the
final decision of the Town Planning Officer. The Town Planning
Officer, in paragraph 1, refers to the ULC land to an extent of 787
sq. mtrs., O.P. 58/3 and land admeasuring 3360 sq. mtrs. O.P. 58/1
reserved for the Corporation and for remaining 23271 sq. mtrs.
original plot allotted is 58/2 jointly. Reference is also made by the
Town Planning Officer, regarding Hissa Mapni so also non-production
of Hissa Form no.11. The Town Planning Officer, has taken a
decision that in absence of any Hissa Mapni, separate final plots
have not been allotted. After the decision is taken, obligation of the
Town Planning Officer, as per sub-rule (9) of Rule 26 of the Rules of
1979 is to communicate the requisite extracts in Form “J”. The
decision of the Town Planning Officer was communicated to the land
owners in the prescribed Form “J”. Followed was the notification of
declaration published in the newspaper on 29.10.2022 and
01.11.2022. The notification of the decision declared by the Town
Planning Officer was published in the Official Gazette. Undisputedly,
the decision taken by the Town Planning Officer and communication
of the requisite extracts of the decision in Form “J” are very much in
place in terms of Rule 26 of the Rules of 1979.
59. As stated hereinabove, the grievance is raised that the
petitioners were not offered sufficient opportunity; moreover, the
objections of the petitioners have not been considered by the Town
Planning Officer, showing undue haste while taking a decision. In the
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opinion of this Court, it is not that the petitioners were not aware
about the proceedings before the Town Planning Officer. The notices
issued and the responses suggest that sufficient opportunity was
provided to the petitioners to state their views which were done,
followed by the decision. Therefore, it is not correct on the part of
the petitioners to argue that the Town Planning Officer has not
adhered to the Rules or that there is non-compliance of the
principles of natural justice.
(ii) Special Civil Application no.19030 of 2022
60. In past, the petitioner was issued notice under section 68 of
the Act of 1976 read with Rule 33 of the Rules of 1979 and the
petitioner, has approached this Court, by preferring writ petition
being Special Civil Application no.1231 of 2008. The petition was
disposed of as withdrawn with a liberty to the petitioner to raise
objections before the Town Planning Officer and the Town Planning
Officer, was directed to consider the same at the time of preparation
of the preliminary TP scheme. The petitioner raised an objection
with a request to give at least an access of 7.5 meter road and 6.7
percent area of survey no.298 as road area and then to deduct
balance from the holdings. Similar such representations were made
thereafter, requesting for personal hearing. The petitioner has filed
the objection on 01.09.2021, raising the grievance against clubbing
of final plot nos.58/2, 58/3, 58/4, 58/5, 58/6 and the narrow
approach to the house of the petitioner. The grievance of the
petitioner was against the access given to plot no.58/3, as it already
has access from proposed 24 meter TP road and newly proposed 12
meter TP road. Objection was also raised against 24 meter road
proposed near the plot of the petitioner. Representations were also
made to the Town Planning Officer so also the State Government at
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the highest level.
61. On 29.11.2021, the Town Planning Officer informed the
petitioner that separate plots cannot be allotted in absence of Hissa
Form no.11A and Hissa Mapni. It is only after the said forms or
measurement is provided, that separate plots can be allotted. The
grievance raised in the petition is also to provide for sufficiently
wide road leading to the residence of the petitioner. On 14.09.2021,
another public notice was issued inviting objections/suggestions
from the land owners with respect to tentative reconstitution;
followed by individual notices on 07.09.2022 and 28.09.2022. In
response to the notice dated 28.09.2022, Mr Pourus R. Mehta, inter
alia, has suggested for 7.5 meter road and to allot separate final
plots; and Mr Rushad Ginwala has also put his signature and has
given the consent with respect to final plot no.58/1. The petitioner in
his representation dated 11.11.2022, was clamouring for the access
to his house from a TP road so also, objecting to the clubbing of the
final plots.
62. Notably, in past, the petitioner, has filed the writ petition
which was disposed of by this Court vide order dated 16.12.2009
apropos which, the petitioner, has filed the representation dated
24.12.2009 wherein, the petitioner has made the request in the
following terms:
“Besides in the entire T.P. there is no road so narrow as to be only
5 meters. As per GDCR of Ahmedabad Development Area, in the
road line is upto 150 meter the width of the road for residential
use has to be 7.5 meter as prescribed under 10.4 of the GDCR.
Hence my plot should have a minimum access of 7.5 meter.”
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In the penultimate paragraph, the petitioner, has stated thus:
“I therefore request you to kindly ensure that the margins of my
house are not cut in any way & I am given access of at least 7.5
meters as per rules laid down in the GDCR. Further please
consider the 6.7% area of S.No.298 as road area and then
deduct balance from our holding. This objection regarding
deduction of road area has been raised by other subplot holders
also from time to time but no response was received from your
office.”
The grievance of the petitioner of providing sufficiently wide
road leading to his residence, does not merit acceptance, because
the same is taken care by providing 7.5 meter road. So far as the
grievance of allotting separate final plot is concerned, in absence of
Hissa Form and/or Hissa Mapni, the Town Planning Officer, has
requested the petitioner and other plot holders to get the needful
done as per the provisions of the Rules of 1972. The aspect of Hissa
Mapni is discussed in detail hereinafter.
Re: Hissa Mapni.
63. The issue of Hissa Mapni has also been raised, and is common
in connection with land in question, contending that the Town
Planning Officer ought not to have raised the issue inasmuch as,
there is no provision which requires submission of Hissa Mapni. The
contention, does not deserve to be accepted considering the
discussion hereinafter. Pertinently, in the notice issued on
28.03.2005, one of the petitioners Mr Pourus R. Mehta on
15.04.2005, has raised objection stating that the Town Planning
Officer wants the Hissa Mapni by DILR which he has tried to get but,
the DILR, had not done the survey of survey no.298 because of the
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objection by Mr B.R. Mehta. Clearly, in the year 2005, the issue of
Hissa Mapni was raised and in the hearing which took place on
15.04.2005, petitioner has lodged the objection and it reads thus:
“I have submitted my objection in writing dated 15.04.2005
regarding the problems in the TP Scheme (FP 58/4 and 58/5). The
Town Planning Officer wants Hissa Mapni of DLR which he had
tried to get down. But DLR had not done survey of E1 of 298
because of objection by B.R. MehtaP.R. Mehta – 15.4.2005”
Therefore, the petitioners were aware about the same since
the year 2005 and did not take any steps in the interregnum. Now,
to raise a contention that such an objection ought not to have been
raised by the Town Planning Officer and if at all it is raised, it should
be resolved by exercising the powers under section 46 of the Act of
1976, is erroneous.
64. Furthermore, the notice was issued on 10.08.2021 wherein, on
17.08.2021, endorsement has been put by one of the petitioners Mr
B.R. Mehta to the following effect:
“Recd. combined copy no.1978 dt. 10/8/2021 with objection and
under protest. Please issue fresh notice with proper details.
Names and details are not correct.
Signed
B.R. Mehta
17/8/2021″
65. Objections were also filed on behalf of Manoj R. Shah through
his Power of Attorney, Ms Seema Parimoo Mehta. Resistance was
against the demand of Hissa Mapni by the Town Planning Officer,
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with further request to visit the site and issue notice for hearing.
After the notice was issued by the Town Planning Officer on
10.08.2021, as many as six representations were filed by the Power
of Attorney of Manoj R. Shah to the Town Planning Officer and two
representations to the State Government at highest level. Objection
is raised against the laying down of the 24 meter road and reduction
in the plot area as well.
66. Contention is raised that the powers could have been
exercised under section 46 by resolving the issue of demarcation
etc. Section 46, concerns the disputed ownership, but the fact
remains that the issue involved in the present writ petition is not of
any disputed ownership, but the boundaries. The names of all the
plot holders are reflected in the common 7/12 form jointly and there
is no separate 7/12 forms issued in favour of the plot holders and
the petitioners. When the issue is regarding boundaries, the
entitlement and the discrepancy in the revenue record vis-a-vis the
District Survey Office Record, the Town Planning Officer requested
the petitioners to provide the Hissa Mapni, i.e. measurement as per
their share which provision finds place in the Rules of 1972 and
more particularly, Rule 21, which speaks about laying down of the
boundaries and it reads thus:-
“21. Boundaries to be laid down : (1) When there is no dispute
the boundary of each sub-division shall be laid down according
to the statement of the holders.
(2) Where there is any dispute, the boundary to which the
dispute relates shall be measured and mapped in accordance
with the claims of both disputants, and the dispute entered in
the register of disputed cases. After the dispute has been settled
under sections 37 and 119-120, or Rule 108, as the case may
be, the map shall be corrected accordingly and the areas finally
entered into the land records.”
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67. In absence of any clarity about the boundaries, the same is to be
measured and mapped in accordance with the claims of the disputants.
68. In the year 2021, various communications and objections have
been lodged by the petitioners justifying respective holdings. Even,
time was prayed for to get the Hissa Mapni done. From the year 2021
till October 2022 until the Town Planning Officer took the decision, the
petitioners were unable to procure the Hissa Mapni and possibly, there
were objections raised and/or lodged by some of the plot holders.
Perceptibly, during the pendency of writ petition, this Court, on
29.11.2022, passed an order directing the DILR to consider the
application dated 14.07.2022 made to the Collector and Deputy
Collector and to undertake Hissa Mapni in respect of the plot of survey
no.298. Relevant extracts of the order dated 29.11.2022 are
reproduced herein below:
“….In the meantime, the DLIR is directed to consider the
application dated 14.07.2022 made to the Collector and Deputy
Collector and undertake Hissa Mapni in respect of plots in survey
No.298, Hanson, Taluka Asarwa, Ahmedabad on payment of the
prescribed requisite fees. The said Hissa Mapni will be filed
along with the affidavit-in-reply of respondent Nos.1 to 3. The
report of Hissa Mapni shall be submitted to the concerned
authority before 15th December 2022….”
69. Thereafter, the office of the DILR undertook the procedure;
however, was unable to complete the formality in view of the
reservation shown by one of the plot holders. The DILR has filed its
reply explaining the procedure and the difficulties faced during the
process of Hissa Mapni. The relevant paragraphs of the affidavit-in-
reply of the DILR in Special Civil Application no.22104 of 2022 are
reproduced hereinbelow:
“6. Since, in the month of August, 2020, all measurement
applications are received online, accordingly the District
Inspector of Land Records (DILR) vide communication datedPage 113 of 130
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30.07.2022 informed the petitioner to prefer an online
application. It is pertinent to note that with respect to survey no.
298 there is a discrepancy in the total area of land as reflected
in the revenue records based on sale deeds entered into Village
Form No. 7 and the District Survey Office (DSO) record. The
total area of Survey No. 298 as per the petitioners in
their respective Khata Numbers in terms of their
respective holding based upon sale deeds entered into
between the parties comes to 27986 Sq. Mtrs. whereas
as per the original revenue records and District Survey
Office (DSO) records, the total area of Survey No. 298 is
27417 Sq. Mtrs. As there is a discrepancy in the revenue
records vis-à-vis the District Survey Officer (DSO) records an
online application for “Hissa Mapni” could not be accepted on
the online portal.
7. It is further stated that as the online application could not be
processed due to discrepancy in order to comply with the order
passed by this Hon’ble Court vide order dated 22.11.2022, a
physical application for carrying out “Hissa Mapni” was also
entertained. Copy of communication dated 30.07.2022
addressed by the District Inspector of Land Records (DILR) to the
petitioner is annexed hereto and marked as ANNEXURE-FA3.
8. On 15.12.2022, one Poras R. Mehta petitioner in Special Civil
Application No. 19030 of 2022 produced a challan to carry out
“Hissa Mapni” for Survey No. 298 at Hansol, Taluka: Asarwa,
Ahmedabad. Copy of the challan dated 15.12.2022 is annexed
hereto and marked as ANNEXURE-FA4.
9. Thereafter, vide communication dated 27.12.2022 issued by
District Inspector of Land Records (DILR), all the land holders of
Revenue Survey No. 298 were informed with regard to the
exercise to be carried out on 30.12.2022 at 11.00 a.m. in terms
of the directions issued by this Hon’ble Court. Copy of the
communication dated 27.12.2022 is annexed hereto and
marked as ANNEXURE-FA5.
10. Accordingly on the said date, the authorities’ remained
present and necessary measurements were duly carried out.
Annexed hereto and marked as ANNEXURE-FA6 is the copy of
the map along with Rojkam dated 30.12.2022 drawn by the
District Inspector of Land Records (DILR), pursuant to the
physical measurement carried out in terms of the order passed
by this Hon’ble Court.
12. Accordingly the measurement was carried out in the
presence of all concerned, the Rojakam evidencing the same
was duly signed by all present. The District Inspector of Land
Records (DILR) has accordingly carried out “Paiki Mapni”.
However, Form No. 11 and plot book of the sub plots in Revenue
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Survey No. 298, Hansol, Ahmedabad cannot be issued for the
following reasons:-
i. There appears to be a discrepancy to the extent of
569 Sq. Mtrs. in the District Survey Office (DSO) record
and the Revenue Record. The Revenue Record shows an
additional holding of 569 Sq. Mtrs. whereas the District
Survey Office (DSO) record reflects 27417 Sq. Mtrs. and
the Revenue Record reflects 27986 Sq. Mtrs. There is an
discrepancy with respect to 569 Sq. Mtrs. in the revenue
record which needs to be reconciled.
ii. Amongst the joint holders, there also appears to
be a discrepancy, with regard to the internal, holdings
and the joint holders were unable to arrive at an amicable
solution to enable the District Inspector of Land Records
(DILR) to allot sub plots based on mutual consent. Had all
the joint holders given an affidavit duly signed by all
concerned mutually agreeing to the boundaries of their
respective plots aligning with the District Survey Office
(DSO) records, the District Inspector of Land Records
(DILR) would have issued separate “Hissa” or separate
plots to each of the land owners. As there appears to be
dispute between the joint plot holders, the same needs to
be resolved in terms of the procedure laid down under
Rule 21(2) of the Gujarat Land Revenue Rules, 1972 to
the Deputy Collector. For ready reference of this Hon’ble
Court, Rule 21 of the Gujarat Land Revenue Rules, 1972
is reproduced hereunder:-
“21. Boundaries to be laid down:-
(1) When there is no dispute the boundary of each sub-
division shall be laid down according to the statement of
the holders.
(2) Where there is any dispute, the boundary to which the
dispute relates shall be measured and mapped in
accordance with the claims of both disputants, and the
dispute entered in the register of disputed cases. After
the dispute has been settled under sections 37 and 119-
120, or Rule 108, as the case may be, the map shall be
corrected accordingly and the areas finally entered into
the land records.”
iii. The procedure prescribed under the Gujarat Land
Measurement Rules is that on an application by joint holders
duly accompanied by a duly affirmed joint affidavit by all the
joint holders clearly stating the measurements of their individual
land holdings. Thereafter, the Surveyor shall visit the site and
measure the actual possession of land held by the co-owners
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individually and sends a report to the DILR. If there is no
discrepancy and dispute with respect to the measurements and
the same are in consonance with the revenue records. The DILR
shall give approval for the Hissa Mapni and issue plot book and
Hissa Form No. 11.
iv. In the facts of the present case, it is not possible to issue
plot book and Hissa Form No. 11 separately for each of the
holders in Revenue Survey No. 298 which is of the joint
ownership of 13 persons as there are differences in the physical
possession, disputes amongst the members and also
discrepancies between the revenue records and the District
Survey Office (DSO).
13. The petitioners in this regard vide communication dated
03.02.2023 was informed that there is a discrepancy with regard
to the land possessed by each of the co-owners and the area of
land has reflected in the revenue record. The petitioners were
also informed that in terms of Rule 21(2) of the Gujarat Land
Revenue Rules, 1972, the petitioner may approach the
Competent Deputy Collector for further proceedings. Copy of the
communication dated 03.02.2023 addressed by the District
Inspector of Land Records (DILR) to the petitioner is annexed
hereto and marked as ANNEXURE-FA7.
14. In this regard, the attention of this Hon’ble Court is drawn to
a communication dated 03.03.2023 addressed by the City
Deputy Collector to the District Inspector of Land Records (DILR)
wherein the case of the petitioner sent back in order to rectify
the revenue records under Rule 21(2) of the Gujarat Land
Revenue Rules, 1972. Copy of the communication dated
03.03.2023 addressed by the City Deputy Collector to the
District Inspector of Land Records (DILR) is annexed hereto and
marked as ANNEXURE-FA8.
15. The petitioner vide communication dated 10.03.2023 was
informed that as there was discrepancy in the area of land
possessed by each of the co-owners, the case of the petitioner
has been referred by the District Inspector of Land Records
(DILR) to the Competent Deputy Collector. Copy of the
communication dated 10.03.2023 addressed by the District
Inspector of Land Records (DILR) to the petitioner is annexed
hereto and marked as ANNEXURE-FA9.
16.Vide communication dated 12.07.2023, the District Inspector
of Land Records (DILR) has informed the City Deputy Collector
that as there is a dispute with regard to the area possessed by
each of the co-owners, the powers to resolve the dispute vests
with the Deputy Collector and the case is now again sent back to
the office of the City Deputy Collector. Copy of the
communication dated 12.07.2023, the District Inspector of Land
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Records (DILR) has informed the City Deputy Collector is
annexed hereto and marked as ANNEXURE-FA10.
17. An light of above peculiar facts and circumstances, it is clear
that there is a major dispute amongst the co-owners of Survey
No. 298 with regard to the possession of land. It appears that
even the revenue records reflect that there is an encroachment
of the petitioner as the land shown in the revenue records is less
than the actual land possessed by the petitioner. Therefore,
unless and until the area of land shown in the District Survey
Office Record is equivalent to the area of land possessed by the
petitioner and shown in the revenue records, the “Hissa Mapni”
of the land in question cannot be carried out. Moreover, there
appears to be encroachment even within the land possessed by
the co-owner and the petitioners are required to approach the
Competent Deputy Collector under Rule 21(2) of the Gujarat
Land Revenue Rules, 1972.”
70. According to the affidavit of the DILR, as per the District
Survey Office records, revenue survey no.298 was totally measuring
27417 sq. mtrs.; whereas, the total area as per the petitioners in
respect to khata numbers in terms of the respective holding based
upon sale deeds entered into between the parties comes to 27986
sq. mtrs. Considering the discrepancy in the revenue record vis-à-vis
the District Survey Office record, online application was not
accepted, but the physical application was accepted pursuant to the
order dated 29.11.2022. Application dated 15.12.2022 was filed by
the petitioners of Special Civil Application no.19030 of 2022, which
was processed and on 27.12.2022, the office of the DILR issued a
communication to all the land holders about the exercise to be
carried out of Hissa Mapni on 30.12.2022. Accordingly, Rojkam was
drawn dated 30.12.2022. Pursuant to the physical measurement
carried out, Ms Seema Parimoo Mehta, Mr Kamal Ginwala for Mr
Kamal Ginwala, Mr B.R. Mehta and one another signed the Rojkam.
Clearly, Seema Parimoo Mehta did not accept the DILR map dated
01.07.2003 and similarly, another endorsement by one of the
signatories was that it is without prejudice to their rights and
contentions. All the six persons though have signed, but with a tacit
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reservation. It is thereafter, the office of the DILR addressed a
communication on 03.02.2023 stating that it is only after the
necessary correction is carried out in the revenue record and with
consent of the plot holders, steps shall have to be taken under sub-
rule (2) of Rule 21 of the Rules of 1972. Correspondences have been
exchanged between the City Deputy Collector and the office of the
DILR and it appears that owing to the discrepancy in the village form
no.7 vis-à-vis District Survey Office record, the matter was required
to be decided by the revenue authorities in terms of sub-rule (2) of
Rule 21. When till July 2023, the issue could not be resolved, the
decision taken and the extract of the decision of the Town Planning
Officer in terms of sub-rule (9) of Rule 21 cannot be find fault with.
Even otherwise, the steps could have been taken by the petitioners
from the year 2005 till October 2022, but the petitioners chose not
do so. Thus, it cannot be said that the Town Planning Officer has
shown undue haste in taking a decision on 27.10.2022. It is well-
settled that every decision has to be examined on its own merits
and the legality and validity of the decision taken cannot be decided
on the touchstone of the time consumed. Merely because the
decision has been taken promptly, cannot be assumed to be bad,
similarly, greater length of time consumed in taking a decision
would not make the decision good.
71. Besides, the Town Planning Officer, has indicated in the re-
distribution form that the rights and shares of the land owners,
would be proportionate to the rights and shares in the original plot
and if the petitioners are desirous of getting the shares determined,
the Committee constituted pursuant to the provisions of sub-section
(2) of section 67A of the Act of 1971 can be taken recourse of.
Therefore, it is not that the petitioners have no remedy and the
grievance cannot be taken care of. Stand is also taken by the State
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Government that the grievance of the petitioners can very well be
considered, upon their making representation to the State
Government. Two avenues are still available to the petitioners to
ventilate their grievances, one under the provisions of section 67A
and another as declared by learned Additional Advocate General Ms
Manisha L. Shah on behalf of the State Government and Mr Prashant
G. Desai, learned senior counsel for the Corporation, before the
State Government, while finalizing the preliminary TP scheme.
72. In the context of allotting the combined plot, it is sought to be
argued that the Town Planning Officer could not have gone beyond
the draft TP scheme. To substantiate, reference is made to the
provisions that the TP scheme has to be in terms of the draft TP
scheme. Considering the decision of the Town Planning Officer the
preliminary TP scheme is in terms of draft TP scheme, except the
separate plots and without boundaries. Pertinently, section 52
provides for the contents of preliminary and final scheme. Sub-
section (1), inter alia, gives the powers to the Town Planning Officer
to define and demarcate the areas allotted to or reserved for any
public purpose and the final plots, after giving notices. Sub-clause
(ii) states that in which a final plot is to be allotted to a person in
ownership in common, the shares of such persons. If the submission
of the petitioners is to be accepted, that the Town Planning Officer
should have acted in terms of the draft TP scheme, nothing would
be left for the Town Planning Officer to do, rendering the provisions
of section 52, almost futile. In the case on hand, as there was no
clarity and hence, the Town Planning Officer has allotted common
final plot with a rider that the rights and shares of the respective
owners, would be proportionate to their rights and shares in the
original plot.
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(iii) Special Civil Application no.22104 of 2022 (survey
no.316, original nos.48/1, 48/2 (2918 sq. Mtrs.) and 48/3
(4771 sq. Mtrs.). Final plot nos.48/1 (812 sq. Mtrs.), 48/2
(1364 sq. Mtrs.), 48/3 (2712 sq. Mtrs.)( ULC land) and 48/4
(628 sq. Mtrs.) :
73. The grievance of the petitioners is that the petitioners are
running the factory on survey no.316. The 12 meter road suggested
earlier was deleted by the Town Planning Officer somewhere in the
year 2012. It is the case of the petitioners that the Town Planning
Officer to protect the premises of the petitioner shifted and diverted
the said road from the petitioners’ premises for which, heavy
reliance is placed on the map of the tentative preliminary TP
scheme dated 25.05.2021. Thereafter, consultation took place
between the Town Planning Officer, the Chief Town Planner and the
Corporation. Numerous representations have been filed by the
petitioners and others which are annexed. In one of the
representation dated 31.08.2021, the petitioner has acknowledged
the acceptance of his proposal dated 16.02.2012. It reads thus:
“Sir, as per the last meeting, what I could gather is that you
were kind enough to save all the constructed properties as per
the proposal dated 16th February, 2012 referred hereinabove
and I am really obliged and thankful to you for supporting the
said proposal dated 16th February, 2012.”
It is thereafter, again on 01.08.2021, the petitioner, has made
a representation to the Town Planning Officer in vernacular, free
english translation, would read thus:
“We have remained present before you on 31.08.2021 and we
have been shown the map. In survey no.316, Sir you have
given a curve to 12 meter road and as a result, the authorizedPage 120 of 130
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building of our factory has been saved. For which, we are
thankful to you.”
74. On 13.07.2022, the Chief Town Planner has addressed a letter
to the Town Planning Officer, followed by the consultation with the
Corporation dated 03.08.2022 and ultimately, the decision has been
taken by the Town Planning Officer on 27.10.2022 after issuing
notices which are placed on the record. The Town Planning Officer,
assigned 4771 sq. Mtrs. (OP 48/3) as ULC land as per paragraph 2 of
the schedule to the notification dated 16.09.2004 and remaining
2918 sq. Mtrs of land (OP 48/1 and 48/2) of the joint ownership.
75. Pertinently, the proposed 12 meter road was passing through
the factory premises situated at the land bearing survey no.316 and
it is not in dispute that pursuant to the representation of the
petitioner and considering the consultation with the Corporation, the
Town Planning Officer has shifted and realigned the proposed 12
meter road towards eastern side by 10 meters with a view to saving
the regularized construction of the petitioner. The Town Planning
Officer, was of the opinion that the 12 meter road was shifted
accepting the consultation of the Corporation and the request of the
petitioners so as to see that the water borewell is not affected.
Considering the construction, 30% deduction has been effected and
the remaining land has been reserved for Sale for Residential (final
plot no.131). The extracts of the said decision, was communicated
to the petitioners in Form “J” which is on the record. Further steps of
publication etc. are not in dispute.
76. Notably, there lies a dichotomy in the submissions of the
learned counsel appearing for the petitioners. While arguing for
survey no.298 and allotment of common plot it is suggested that the
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Town Planning Officer should have drawn the preliminary TP scheme
in terms of the draft TP scheme. If that be so, then how the Town
Planning Officer is wrong in continuing with the 12 meter road which
is forming part and parcel of the draft TP scheme. Despite which,
accepting the request of the petitioner, the alignment has been
shifted within the permissible limit of 10 meter. One more aspect
touches the issue considering the fact that in the draft TP scheme,
there was a road already available and as per the provisions of
section 48A of the Act of 1976, the land, shall absolutely vest in the
State Government and becomes part of the Act. On this count as
well the grievance of the petitioner does not merit acceptance. The
issue of allotting a common plot, is as a result of the absence of
Hissa Mapni/measurement which aspect, has been dealt with
hereinabove.
(iv) Special Civil Application no.22693 of 2022 (Survey
no.314/1, 314/2, 314/3 and 315 paiki):
77. Notices were issued by the Town Planning Officer dated
09.08.2021 with respect to survey no.314/1, 314/3, 315 which has
been received on 17.08.2021. Thereafter, the Town Planning Officer
has addressed a letter dated 30.11.2021, stating that the 30 meter
road abutting final plot no.6/3 has been suggested by the
Corporation on 25.05.2021 as per the consultation. With respect to
the request of merging revenue survey no.315 in 314/3, necessary
proofs were requested of ownership and the Hissa Mapni. It has
been suggested that upon receipt of the documents, the steps shall
be taken. Another letter was addressed on 02.12.2021 with respect
to survey no.315 stating that in absence of any Hissa Mapni,
separate plots have not been allotted. Followed, were the notices
dated 07.09.2022, 28.09.2022 and the decision on 27.10.2022. On
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11.10.2022, proceedings have been recorded. It has been stated
that one of the land owners of revenue survey no.314/2 and 314/1
has remained present pursuant to the notice issued by the Town
Planning Officer and was explained about the proposal. The land
owner, has also suggested certain adjustment with respect to final
plot no.6/2 and 6/3 in such a way that the land of final plot no.6/1 is
adjusted in the said plots. The said proceedings, has been signed by
one of the owners. One Mr Siraj Khambhata, has also remained
present and was made to understand about the survey no.315.
Request was made for sometime. The Town Planning Officer, took a
decision and as per the decision, the petitioner has been allotted the
final plots of the revenue survey nos.314/1, 314/2, 314/3 and 315.
The matter, was discussed and deliberated by the Town Planning
Officer and as per the instructions of the Chief Town Planner
contained in paragraph 7 of the communication dated 13.07.2022,
in all the cases where the original plots are of joint ownership, in
absence of Hissa Form and production of measurement sheet, the
final plot shall be provided jointly. Further instructions were issued
that the above referred instructions shall apply uniformly to the
similar cases.
78. Grievance raised is also that 30 meter TP road on the eastern
side of survey no.314/3 and 18 meter TP road in revenue survey
no.314/1 is arbitrary and illegal as it would affect the construction of
the petitioner and existing trees. Record reveals that 30 meter road
is based on the consultation of the Town Planning Officer with the
Corporation dated 03.08.2022. Similarly, the reservation of social
infrastructure is proposed by the Town Planning Officer in
consultation with the Corporation considering the standard
deduction of 30% across the scheme. The decision, has been placed
on record of the Town Planning Officer with respect to survey
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no.315. It has been stated that after considering the proposal, the
Town Planning Officer, has given its decision. The decision of the
Town Planning Officer was communicated in Forms “J” all dated
03.11.2022 which are forming part of the record. Under the
circumstances, it is difficult to accept that the Town Planning Officer
has not considered the grievance of the petitioners. To consider
does not mean acceptance of the views.
(v) Special Civil Application no.24962 of 2022 (survey
no.339, 340/1, 340/2, 342, 346, 349/1, 349/2 and 352 paiki):
79. The grievance of the petitioners is that at the time of
preparation of the draft TP scheme, the petitioners were allotted
consolidated final plots and as against the total land holding of
75672 sq. mtrs., the petitioner was allotted six final plots
admeasuring 55760 sq. mtrs. Five final plots admeasuring 52811 sq.
mtrs. are adjoining to each other whereas, final plot no.13/3 is
allotted on the west of the cluster. It is the case of the petitioner
that the decision of the Town Planning Officer is arbitrary and
violative of sub-rule (4) of Rule 26 of the Rules of 1979 inasmuch as,
sub-rule (4) of Rule 26 casts an obligation on the Town Planning
Officer to consider and which means consideration in the form which
reflects application of mind. The decision of the Town Planning
Officer shows non-application of mind. As per the record and the
tabulated chart reproduced herein above, suggest that the Town
Planning Officer has issued individual notices to the land owners in
the month of August 2021, followed by public notices in the local
newspaper in the month of September 2021 and again in September
2022 individual notices to the land owners inviting suggestions and
objections. The petitioners are clamoring for plots at one place in
lieu of survey nos.339, 340/1, 340/2, 346, 349/1, 349/2 and 352Page 124 of 130
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paiki out of which, as per the map, survey nos.352 and 349 are on
one side and survey nos.339, 340, 342, 346 are at different location.
The original plot no.352 was assigned final plot nos.17/1, 17/2 and
17/3 and in lieu of survey no.349, final plot allotted, was 31.
80. Upon reconstitution, the Town Planning Officer, has allotted
final plots in the respective original plots and the reservation for
urban forestry in one of the plots. The Town Planning Officer has
allotted the final plots in the respective original plots considering
the holding and ownership. In the present case, the petitioners are
praying for deduction from their survey nos.340/1, 340/2 and 346
and urging for consolidated final plot in the land bearing survey
nos.349/1, 349/2 and 342. Clearly, the Town Planning Officer, in
consultation with the Corporation, has earmarked the reservation
and in terms of the prevalent policy, allotted final plots in the
respective original plots of the petitioners. Contention is raised that
the petitioners, have altered their position by developing the plots
allotted to them at the time of the draft TP scheme. The grievance
of the petitioners is that their scattered plots may be consolidated
and be given at one place. Raising a contention that the petitioners
are seeking allotment of final plot in one cluster only for
convenience since the petitioners have developed the final plot for
residential use on the basis of the sanctioned draft TP scheme.
Notably, the provisions of the Act of 1976 and more particularly,
section 67 provides that the rights in the reconstituted plots gets
crystallized and the land owner who is allotted final plot on
reconstitution becomes the absolute owner only upon preliminary
scheme coming into force as per section 67. In the case on hand,
the petitioners, have been allotted final plots in their respective
original plots and the reservation as per the applicable policy and
hence to contend that there is no provision in the Act which requires
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allotment of the final plot only within the original plot, is untenable.
Resistance is against the reservation of the urban forestry. In the
matter of town planning, it is for the authorities to take a decision
where and how the reservation is to be provided which would be a
matter of public interest.
81. It is sought to be argued that to consider means application of
mind. Pertinently, the provisions allows the stakeholders to state
their views and the Town Planning Officer, to consider the same.
The petitioners are expecting the Town Planning Officer to consider
and fulfill their individual expectations which, would be
impermissible in view of the feasibility and the magnitude of the
planning involved. The nature of dispute involved in the writ
petitions is about alleged discrepancies in the boundaries and the
wantings at the end of the petitioners and the petitioners seek
resolution of such grievances through the Town Planning Officer,
whose role is confined to decide the objections with respect to the
TP scheme as per law and not to address the disputes concerning
Hissa Mapni, internal roads and the understanding and agreement
between the parties. The personal grievances, if any, has to be
resolved at their end independently and in accordance with law.
Re: Town Planning Roads.
82. Having dealt with the individual merits, it takes this Court to
the issues of TP roads as, the grievance is raised against 12 meter
TP road, 24 meter TP road, 18 meter TP road and 30 meter TP road.
The issue of 12 meter TP road is already discussed hereinabove.
83. So far as 24 meter TP road is concerned, it is not in dispute
that it is forming part of the second sanctioned revised development
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plan notified under section 17 on 20.12.2014. In the writ petition
being Special Civil Application no.21780 of 2022, it is the stand
taken by the petitioner that the petitioner has lodged the objection
pursuant to the notification No. AUDA/Second Revised
D.P./Publication/No.05506/2013 dated 10.06.2013 issued by the
AUDA proposing 24 meter TP road at item no.206 in the Hansol
area. Paragraph 3.11 in the writ petition, reads thus:
“3.11 It is submitted that with regard to the proposed road in
the Development Plan / Town Planning Scheme (which was
deleted on 20.02.2004, 16.09.2004 aforesaid notifications), in
Survey No. 298, the petitioner on 01.08.2013, 24.05.2014,
29.10.2014 has submitted his objections and suggestions to the
Notification dated 10.06.2013, issued by the AUDA, wherein vide
Item No.206 the 24 Mtr. Road was proposed in Hansol Area. the
petitioner do not have, the map/sheet attached to the said
Notification. A copy of the Notification dated 10.06.2013 is
annexed hereto and marked as Annexure-M/1. It appears that
in the Revised Development Plan, sanctioned by the State
Government on 20.12.2014, on the Southern side of Survey No.
298, it was provided to lay down 24-meter-wide road. However,
the same was never implemented in Survey No. 298 and other
places (as there are Army Ammunition Dump, Military Target
Area, Butchery etc. situated on the Southern side of the
petitioner’s land), probably due to the serious, continuous
objections raised by the Army Cantonment Defense Department,
which is situated adjoining to the said proposed road which
would have serious threat to the Army’s sensitive installations.
The communications issued in that regard by the Army
Cantonment are described hereinafter. A copy of the Notification
dated 20.12.2014 is annexed hereto and marked as Annexure-
M/2.”
In this connection, the affidavit-in-reply is filed on behalf of
respondent nos.1, 2 and 3 by the Town Planning Officer & Senior
Town Planner (page 296 of Special Civil Application no.22104 of
2022) stating thus:
“……Thereafter, in exercise of the powers conferred to the
Ahmedabad Urban Development Authority, as per section 21 of
said Act, the Ahmedabad Urban Development Authority prepare
and publish Second Revised Development Plan 2021, which was
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(sic.) 16 of the said Act. and it was sanctioned by Government of
Gujarat by Urban Development & Urban Housing Department’s
Notification No.GH/V/207 of 2014/DVP/112013-4777-L, Dated
20/12/2014. The impugned “30 Mtr. wide road passing through
Hansol village is proposed as “24 Mtr. wide road as per the
proposal of Sanctioned Second Revised Development Plan 2021 of
Ahmedabad Urban Development Authority.”
84. The record reveals that the Sanctioned Second Revised Plan
has remained unchallenged. Sub-section (1) of section 40 speaks
about preparation of the TP scheme for the development area
“regard being had to the proposals in the final development plan”.
Therefore, the Town Planning Officer could not have redressed the
grievance as regards 24 meter road at the stage of preparing the
preliminary TP scheme. In the case of M.M.P. Charitable Trust Thr’
Its Managing Trustee vs. State of Gujarat Thr’ Secretary & Others
(supra), it has been held and observed that as per the provision of
sub-section (3) of section 17 of the Act of 1976, a final development
plan is binding on the Area Development Authority concerned and
on all other authorities stationed in the area of development plan. It
is also sought to be argued that the grievance is raised against the
laying down of the 24 meter road by the Army Cantonment;
however, neither the Army Cantonment is before this Court nor the
issue. In absence of Army Cantonment before this Court and not a
party in the captioned proceedings, it would not be prudent for this
Court to express any opinion.
85. With regard to the objections concerning 18 meter and 30
meter TP roads, it is pertinent to note that the alignment of these
roads has been determined upon the consultation between the
Town Planning Officer and the Corporation which is essentially for
ensuring proper road connectivity. Upon overall consideration of the
grievances raised in relation to the TP roads, it emerges that the
writ petitions uniformly challenge the proposed 24 meter, 30 meter,
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18 meter and 12 meter TP roads on the ground that such roads are
either not needed or affect the immovable properties of the
petitioners. If such objections were to be considered, it would result
in a scenario wherein, within the preliminary TP scheme covering
area of 11,82,000 sq. mtrs., no roads would be available. Such an
outcome is untenable, especially in view of the ongoing rapid
development in the city and the consequential increase in vehicular
traffic which, necessitates an adequate and well-planned road
infrastructure.
86. In view of the above discussion, writ petition being Special
Civil Application no.21780 of 2022, Special Civil Application
no.19030 of 2022, Special Civil Application no.22104 of 2022,
Special Civil Application no.22693 of 2022 and Special Civil
Application no.24962 of 2022 are hereby dismissed. Connected civil
applications, if any, stand dismissed. Interim relief, if any, stands
vacated. No order as to costs.
(vi) Special Civil Application no.18142 of 2021
87. The petitioner has sought direction to implement the TP
scheme. Grievance of the petitioner is that the commencement
letter was issued back then in the year 2011, the petitioner has paid
the requisite fees and plans have been sanctioned despite which the
petitioner is unable to develop the plot in absence of access to the
plot of the petitioner. The petitioner has accepted the letter in the
year 2011 and now cannot turn around and challenge the same. The
other grievances would not survive. In view of the dismissal of the
above-referred writ petitions and vacation of the interim relief, the
grievance of the petitioner in Special Civil Application no.18142 of
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2021 for implementing the TP scheme, stands redressed and hence,
no further orders are required to be passed and is accordingly
disposed of.
Sd/-
(SANGEETA K. VISHEN,J)
: FURTHER ORDER :
1. After the pronouncement of the common CAV judgment, Mr
Mihir H. Joshi and Mr Rashesh S. Sanjanwala, learned senior counsel
have urged this Court to continue the interim protection which was
prevailing all throughout during the pendency of the writ petitions.
2. Ms Manisha L. Shah, learned Additional Advocate General and
Mr Prashant G. Desai, learned senior counsel appearing for the
Corporation have vehemently opposed the request of stay by
referring to the order dated 29.11.2022 passed by this Court.
3. This Court, vide order dated 21.10.2022 read with order dated
29.11.2022, has extended the protection. Considering the fact that
the protection has been in currency since the order dated
21.10.2022 read with order dated 29.11.2022, this Court, deems it
appropriate to continue the protection for a period of eight weeks’
from today.
Sd/-
(SANGEETA K. VISHEN,J)
RAVI P. PATEL
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