1999 Supreme(Guj) 88

Gujarat High Court
Judgename :M.R.CALLA
NAVINCHANDRA NANALAL KIKLAWALA - Appellant
Versus
STATE - Respondent
S.C.A. 9468 of 1996
Decided On : 03/03/1999

Headnote:(a) Gujarat Town Planning and Urban Development Act, 1946 - Sec. 71 - Variation of town planning scheme - Admissibility - Provision under permits only by any subsequent scheme made published and sanctioned in accordance with provisions of the Act - Nagar Palika cannot claim variation as a matter of right nor it can refuse implementation on ground that it has sought variation of scheme - Obstructions in implementation of scheme pointed out by Dahod Nagar Palika could be removed if resorted to Secs. 67, 68, 69 & Rule 33 of the Rules under the Act - In the facts & circumstances Nagar Palika was under statutory obligation to carry out the scheme.

       This Sec. 71 of the Act 1976 only permits the variation of Town Planning Scheme by any subsequent scheme made published and sanctioned in accordance with the provisions of this Act. The Nagar Palika cannot claim this variation as a matter of right nor it can avoid the implementation of finalised and published Town Planning Scheme on the ground that it has sought the variation of this Scheme. Therefore, mere permissibility of variation in Town Planning Scheme by subsequent scheme does not authorise the Nagar Palika to avoid implementation of the scheme. Sec. 71 of the Act as reproduced above, is only in the nature of an enabling provision with the Town Planning Department for the purpose of varying the finalised scheme at subsequent stage by subsequent scheme. But it is for the Town Planning Department to consider as to whether any scheme is required to be varied or not. May be that the Dahod Nagar Palika has requested the Town Planning Department to vary the scheme, the fact remains that till this date, the Department has not accepted any variation, on the contrary, there is document placed on record along with additional affidavit filed on behalf of Dahod Nagar Palika itself, in which, the Chief Town Planner has categorically mentioned that the proposals made by the Nagar Palika did not require any change or variation in the Scheme in public interest.

       These provisions under Secs. 67 to 69 & Rule 33 of Rules make it clear that, if these provisions are resorted to, obstructions as are being pointed out by the Dahod Nagar Palika, may be removed and had any effort or endeavour been made by the Nagar Palika, by this time all these difficulties would have been solved. Such provisions are made in the enactment only to see that the Town Planning Schemes and the development activities which are undertaken by the concerned department reach their logical result for the benefit of all concerned. This Court therefore finds that the Nagar Palika was under statutory obligation to carry out the scheme as the same was finalised in the year 1977 and was published in 1981 and in any case, once the Town Planning Department had expressed in no uncertain terms that it was not in public interest to vary the sanctioned Town Planning Scheme, the Nagar Palika ought to have implemented the scheme in right earnest without any loss of time.

       [Para 4]

       (b) Gujarat Town Planning & Urban Development Act, 1946 - Sec. 20 & Rule 2.1(3) & (4) of Rules under the Act - Claim that possession of petitioner trust may not be disturbed - Such claim made on basis of Sec. 20 is not sustainable - Provision is with regard acquisition of land which is applicable in which land has been designated - Contention that even if petitioner is tenant his possession cannot be disturbed without notice has no force in the facts of the case because notices have been given - Thus Court cannot issue any direction that petitioners possession may not be disturbed.

       The contentions raised on behalf of the petitioner Trust in Special Civil Application No : 2462 of 1998 based on Sec. 20 is with regard to the acquisition of land and it cannot be invoked in the facts of the present case as it applies only when the land is designated. Even Mr. Shah appearing for the Nagar Palika has submitted that Sec. 20 is not at all applicable to the fact situation of the present case, inasmuch as, it is not a case in which the land has been designated. The arguments based on Sec. 20 therefore fail. The petitioner trust is not entitled to seek a direction that their possession may not be disturbed on the land which forms part of the Town Planning Scheme.

       However, such affidavit or notice are not found to be included in the file which is available with the court at the time of hearing of this matter. But Mr. Sood, appearing for the claimed tenant Panchubhai Matrubhai Pathak himself was fair enough to show from his own file, a copy of such notice dated 27th June, 1989 issued under the Signature of Chief Officer of Dahod Nagar Palika. In this view of the matter, the argument raised on the basis of the aforesaid decision rendered by the Honble Supreme Court, cannot be said to be available to the petitioner Pachubhai Matrubhai Pathak and he is not entitled to relief that his possession may not be disturbed. So far as the question of providing alternative accommodation, to the petitioner Pachubhai Matrubhai Pathak in Special Civil Application No. 7895 of 1997 - and to the trust as its tenant is occupying the part of the land of this scheme, is concerned, it is for the Nagar Palika to consider their request in accordance with law. No direction in this regard can be issued by this Court in the facts and circumstances of this case.

       [Para 5]