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Gujarat High Court
Judgename :M.R.SHAH
M.M.P.Charitable Trust - Appellant
Versus
State of Gujarat - Respondent
SPECIAL CIVIL APPLICATION 14409 of 2005
Decided On : 09/14/2005
Town planning scheme - Road through play ground of school - Providing of - Variation in scheme - Refusal - Sustainability.
Head Note :
Gujarat Town Planning and Urban Development Act, 1976 (Guj. Act 27 of 1976) - Sections 17(3), 65 and 67 read with Rules 33 and 68 - Town Planning Scheme - Road through play ground of school - Providing of - Variation in Scheme - Refusal - Sustainability - It is not in dispute that entire Town Planning Scheme is implemented and road is laid down except in the disputed portion of the land in question - Even in development plan also there is a road purposed which is as per the present final Town Planning Scheme - It is required to be noted that a final development - Plan is binding on the Area Development Authority and on all other authorities concerned - Contention of petitioner that road in question can easily pass through the final Plot No. 61 instead of disputed land of Plot No. 60 has no substance because final Plot No. 61 is already included in the land acquisition proceeding for drainage, pumping station and that on the said land there is a slaughter house - There are houses wherein persons are residing - Therefore, if the proposal of the petitioner is accepted it is likely to affect all of these - Considering these facts it cannot be said that the decision of the Town Planning Committee of Corporation in rejecting the application of the petitioner for variation in the scheme is in any way arbitrary or mala fide. That apart it is ultimately for the Town Planning Authority who has the best person having technical knowledge to propose a road in the Scheme - This Court cannot set as an appellate authority against the said decision of expert body - The contention of petitioner that no hearing was given to petitioner while taking decision not to vary the scheme is without any force in absence of any provision to that effect in the Act - Court thus finding no justifiable reasons refused any interference - Constitution of India, 1950 - Article 226.
Held :
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 Nos. 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 mala fide. 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. [Para 6]
Law Laid Down :
A final development plan is binding on the Area Development Authority and all other authorities stationed in the area of development plan.
Conclusion :
The decision of the Town Planning Committee is in no way arbitrary or mala fide - It is the decision of expert body under Town Planning Act over which Court cannot set as an appellate authority.
Decided in Favour of :
Respondents
Petition Dismissed
( 1 ) RULE. By way of this petition under article 226 of the Constitution of India, the petitioner Trust has prayed for an appropriate writ, direction or order quashing and setting aside the part of Town Planning scheme No. 14 [rander Adjan] which provides a road through playground bearing survey No. 212/b, 213 and 216 (1+2) of the school owned by the petitioner Trust. It is further prayed to quash and set aside the resolution dated 7. 12. 2004 passed by the town Planning Committee of the Surat municipal Corporation rejecting the petitioners application for variation in the scheme.
( 2 ) IT is the case of the petitioner that the petitioner Trust is running the School imparting education and the school building and other properties constructed thereon are situate in Survey No. 212-B, 213 and 216 (1+2) in Rander at Surat. It is the case on behalf of the petitioner that all the schools have a common playground situate in said survey Nos. 212-B, 213 ad 216 (1+2 ). It is also the case on behalf of the petitioner that original area of the ground was about 22000 sq. yards out of which 1200 sq. yards were acquired by Surat Municipal Corporation for running of a slaughter house and subsequently over 3000 sq. yards have been acquired for widening the road and the ground now is admeasuring approximately 7000 sq. yds. , only. It is the contention on behalf of the petitioner that in the draft town Planning Scheme No. 14 (Rander-Adjan) a T. P. Road was proposed through the ground of the school, and as it was likely to affect sporting facilities, the petitioner preferred Special Civil Application No. 1456 of 1998 before this Court and this Court disposed of the said Special Civil Application as withdrawn as by Resolution passed by the town Planning Committee of Surat municipal Corporation recommended that the road should not pass from the playground of the school. It is the case on behalf of the petitioner that thereafter without any knowledge of the petitioner and without affording any hearing to the petitioner the matter proceeded further and the petitioner received a notice dated 27. 8. 2001 purported to be a notice under Section 68 of the Town planning Act and asked the petitioner to vacate the said land within 7 days and hand over vacant possession. It is the case of the petitioner that the petitioner represented against the said notice and met the concerned Minister, Collector, and Town planning Officer and submitted that the road in question can easily pass through the lands of the adjoining slaughter house which was also originally belonging to the petitioner which has been acquired, without causing any difficulty to the playgrounds of the petitioners schools. It is the case of the petitioner that assurances were given to the management that needful would be done and the road would be shifted so as not to disturb the petitioner institution. It is also the case on behalf of the petitioner that there were necessary correspondence between the collector and the Town Planning department also. It is the case on behalf of the petitioner that in the original-scheme the road was not passing through the playgrounds of the schools but was passing from another side, however now in the area between the schools and the South of the school huge buildings have come up and it is to accommodate the organisers of the said buildings that the road has been changed and it is now made to pass through the playgrounds of the schools. It is the case on behalf of the petitioner that inspite of the aforesaid, on 19. 2. 2004 when the schools were working the employees of the respondent Corporation arrived with bulldozer, broke down the wall of the school; and therefore the petitioner had preferred special Civil Application No. 2185 of 2004 before this Court. Initially this Court issued notice and granted interim relief restraining the respondents to carry out any bull-dozing activity within the school premises and granted relief of restraining the
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