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2011 (2) GCD 1246 (Guj) (DB)
Hon’ble Mr. Chief Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice Mr. J.B. Pardiwala
Kartik Mohanbhai Patel
Versus
State of Gujarat Through Secretary & Others
Letters Patent Appeal No. 2339 of 20101—Decided on 28/03/2011
Gujarat Town Planning and Urban Development Act, 1976 — Sections 65, 70 and 71 — Application for variation of the Town Planning Scheme — Rejected by State Government and rejection upheld by Single Judge — Ground that Scheme is already sanctioned long back — And not in public interest to interfere — Finding of — Sustainability.
Held :
Having regard to the rival contentions of the respective parties and having regard to the facts and circumstances of the case, we are of the view that the approach of the State Government is very lackadaisical. As per the provisions of Section 70 of the Act, even if the scheme is finalised, there is power with the authority to consider the matter for variation of the scheme, if the scheme is defective on account an error, irregularity or infirmity. Such power can be exercised upon the application of the appropriate authority or the State Government itself can also consider the matter for variation. It appears that there is an inbuilt mechanism under the Act for considering the question of variation in the preliminary or final scheme on account of an error or irregularity, the Court of law may not be required to exercise the power of striking down or setting aside the scheme to that extent and that is the reason why earlier the learned Single Judge rightly directed the appellant – original petitioner to prefer an appropriate application / representation to the State Government to consider the question of variation on the various grounds available to the appellant. [Para 8.4]
In the present case, Court is not at all satisfied with the manner in which the entire representation has been disposed of and decided against the appellant. The most important question that crops up is as to whether the notings made in the files and based on those notings if something is communicated to the appellant can it be said to be an order and that too to be a government order. [Para 9]
Court is of the view that in light of settled position of law the communication at page 27, which was the subject matter of challenge in the original writ petition cannot be termed as an order by any stretch of imagination. This aspect has not been considered by the learned Single Judge. In this view of the matter, Court is left with no other option but to quash and set aside the order passed by the learned Single Judge and remit the matter to the State Government for fresh consideration with appropriate directions. [Para 11]
Law Laid Down :
The order of Revenue Minister could not amount to order by the State Government unless it is expressed in the name of Rajasthan Pramukh as required under the Constitution and communicated to party concern.
J.B. Pardiwala J.—By way of the present appeal, the appellant-original petitioner seeks to challenge judgment and order dated 15th September 2010 passed by the learned Single Judge wherein the petition of the appellant-writ petitioner came to be dismissed.
2. The brief facts relevant for the purpose of deciding the present appeal can be summarised as under:-
3. The appellant is the owner of land bearing Plot No. 476 part admeasuring 26,669 square meters (Original Plot No. 98/2-3). The appellant received a communication from the Chief Executive Officer, Vadodara Urban Development Authority (VUDA) intimating that Town Planning Scheme No. 1 (Bil) has been finally sanctioned and for the implementation of the said scheme with respect to the said area, a meeting has been convened on 19th June 2008. The appellant informed the authority that he may be provided with all the details and only thereafter a meeting may be convened. The appellant was not provided with the requisite information and even the map which was shown to the appellant was incomplete. The appellant sought certain information under the Right to Information Act, 2005. Even under the Right to Information Act, 2005 no satisfactory reply was given to the appellant. The appellant, therefore, thought it fit to approach this Court by way of filing Special Civil Application No. 11742 of 2008 and prayed for appropriate reliefs for the purpose of setting aside the Town Planning Scheme No. 1 (Bil) so far as it affected the property of the appellant bearing Plot No. 476 part admeasuring 26,669 square meters.
4. The record reveals that the aforesaid petition was taken up for hearing by the learned Single Judge and during the course of hearing it was submitted on behalf of the State of Gujarat that as per the provisions of law once preliminary scheme is sanctioned under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as “the Town Planning Act”). The only remedy available with the aggrieved party is to approach the State Government under Section 70 or 71 of the Town Planning Act. It was also submitted on behalf of the State Government that as the applicant has not preferred any application for variation of the Town Planning Scheme, as provided under Section 70 and 71 of the Town Planning Act, the petition was not maintainable. In that view of the matter, the learned Single Judge relegated the appellant to approach the State Government by preferring the appropriate representation for variation in the scheme under Section 70 of the Act. With these directions, the petition was ordered to be disposed of.
5. The record further reveals that pursuant to the said order passed by the learned Single Judge in Special Civil Application No. 11742 of 2008, the appellant preferred application with the State Government under Section 70 of the Town Planning Act for variance of the Town Planning Scheme. The said application is produced at page 37 (Annexure-F). We noticed that the application is quite exhaustive and all relevant aspects of the matter have been incorporated in the said application. After this representation was preferred, the appellant received a communication in the form of a letter addressed by one L.G. Mehta, Section Officer in the Urban Housing and Urban Development Department of the State Government informing that the representation has been considered and the same has been ordered to be rejected. The said communication is at page No. 27, which is running in about six lines.
6. The appellant being aggrieved by the said communication from the State Government in its Urban Housing and Urban Development Department preferred Special Civil Application No. 5274 of 2010 and challenged the same on various grounds. The learned Single Judge came to the conclusion that as the Town Planning Scheme was already sanctioned way back in the year 1996 variation in the Scheme would not be in the public interest. The learned Single Judge t
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