Back
2011 (2) GCD 1200 (Guj)
Hon’ble Mr. Justice M.R. Shah
Sunilbhai Natvarbhai Patel & Ors.
Versus
State of Gujarat Through Secretary & Ors.
Special Civil Application No. 14499 of 2010—Decided on 09/03/2011
Gujarat Town Planning and Urban Development Act, 1976 — Sections 48, 48(2) and 65 — Gujarat Town Planning and Urban Development Rules — Rules 26 and 26(a) — Preliminary Town Planning Scheme — Sanction of by State Government — Scope of modification — Instead of final plot ‘A’ proposed to be allotted under the Preliminary Town Planning Scheme by Town Planning Officer of State Government can not modify the same and sanction the same and allot final plot ‘B’ — In such a case opportunity of hearing has to be given to land owner — In view of the impugned order of sanction of Preliminary Town Planning Scheme No. 28 sanction by State Government allotting final plot No. 143 to Surat Municipal Corporation is set aside and gave necessary consequential orders.
Held :
In a case where the State Government sanctions the Preliminary Town Planning Scheme with modification in the Preliminary Town Planning Scheme suggested by the Town Planning Officer and instead of Final Plot “A” suggested by the Town Planning Officer under the Town Planning Scheme, Final Plot “B” is allotted to the land owner at the time of sanctioning the Preliminary Town Planning Scheme No. 65 of the Town Planning Act i.e. modifying the Preliminary Town Planning Scheme suggested by the Town Planning Officer to the aforesaid extent, before such a modification, an opportunity is required to be given to the original land owners to submit their objections and suggestions and at that stage, principles of natural justice is required to be read into. Under the circumstances, the impugned Preliminary Town Planning Scheme No. 6 (Unja) sanctioned by the State Government with respect to the lands of the petitioners - original land owners deserves to be quashed and set aside.
[Para 9.0(22)]
In view of the above and for the reasons stated above, the petition succeeds. The impugned Preliminary Town Planning Scheme No. 28 (Althan Bhatar-Surat) sanctioned by the State Government in exercise of the powers under Section 65 of the Act in so far as Final Plot No. 143 allotted to the Surat Municipal Corporation is hereby quashed and set aside. Let the Preliminary Town Planning Scheme sanctioned by the State Government with respect to the aforesaid lands in question be treated as a notice inviting objections and suggestions and it will be open for the petitioners and all other persons likely to be affected, to submit their objections and suggestions within a period of three months from today and it will also open for the appropriate authority and / or Surat Municipal Corporation to submit their objection / suggestion. Thereafter, the State Government is directed to take appropriate decision in accordance with law and on merits, after considering the objections and suggestions, if any, received and considering the objection and suggestion, if any, received and considering the Section 65 of the Act. [Para 11]
Law Laid Down :
Considering the Scheme of Town Planning Act right from preparing the Draft Town Planning Scheme till it’s sanction the right of hearing to be given to land owners.
M.R. Shah, J.— Rule. Shri Pandya, learned Advocate waives service of notice of Rule on behalf of Respondent Nos. 3 and 4 and Shri Dave, learned AGP waives service of notice of Rule on behalf of Respondent Nos. 1 and 2. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
2. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and / or order directing the respondent authorities to vary the scheme under Section 70 A of the Gujarat Town Planning and Urban Development Act, 1976, qua the lands of the petitioners and to restore the allotment of Final Plot No. 143 to the petitioners
2.1 The petitioners have also prayed for an appropriate writ, direction and / or order quashing and setting aside the Town Planning Scheme No. 28 (Althan Bhatar-Surat) qua the land of the petitioners.
3.0 The facts leading to the present petition in nutshell are as under:
3.1. That the land in question being Survey No. 35 total admeasuring 12,901 sq.mtrs. belonged to one Ukabhai Narayanbhai Patel. That the said land was situated within the Surat Urban Agglomeration. That the intention to prepare the Town Planning Scheme No. 28 was declared by the appropriate authority on 9.6.1995 of the land in question was also included in the said Scheme. That the owners meeting held on 2.4.1996. That the Draft Town Planning Scheme was published under Section 48 of the Act on 8.11.1996 and the same came to be sanctioned under Section 48(2) of the Act on 30.7.1998. That while re-constituting the plot, 18 meter wide road was carved out from the land belonging to the original owners which according to the petitioners resulted into four sub plots being cut. That the original land owner Ukabhai Narayanbhai Patel filed objection before the Town Planning Authority on 30.6.2001 pointing out that as the land of sub plots Nos. 1,2, 3 and 4 are required for the purpose of road as the plot holders are deprived of the same, the Town Planning Officer may be pleased to grant any other alternative plots so that the four plot holders can be accommodated. It is the case of the petitioners that after considering the objections filed by the original owner Shri Ukabhai Narayanbhai Patel, while submitting the Preliminary Town Planning Scheme, the Town Planning Officer was pleased to reconstitute the original revenue survey No. 35 as the original plot No. 36 admeasuring 12,901 sq.mtrs. and in lieu of that, by way of reconstitution, the Town Planning Officer was pleased to allot Final Plot No. 58 admeasuring 11,801 sq.mtrs. and Final Plot No. 143, at a distant place, but within the Town Planning Scheme area, admeasuring 248 sq.mtrs. only. It is the case of the petitioners that respective petitioners have individually purchased the sub-plots No. 1 to 4 from the original owner Ukabhai Patel and also filed the objection before the Town Planning Officer on 20.6.2009. It appears that as the possession was needed for the purpose of road, the petitioners voluntarily handed over the possession of the same to the respondent Corporation and in lieu of that, the Respondent No. 2 Corporation has also handed over the possession of the Final Plot No. 143 to the petitioners with the consent of the original owner of the said plot. It appears that thereafter the Preliminary Town Planning Scheme as suggested by the Town Planning Officer has sent to the State Government for its sanction under Section 65 of the Act and the State Government while sanctioning in schedule as item No. 4 has stated that the Final Plot No. 143 stands, which was proposed to be allotted to the original owners by Town Planning Officer stands alloted to the Surat Municipal Corporation for public utility. It is the case of the petitioners that by virtue of the said decision, the plot holders of the plot Nos. 1 to 4 who were allottees in the sc
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
