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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R. Subhash Reddy, Vipul M. Pancholi, JJ.
Kishanbhai Hargovandas Patel & Ors. – Appellants
Vs.
State of Gujarat & Ors. – Respondents
Letters Patent Appeal No. 892 of 2017, In Special Civil Application No. 16299 of 2010 With Civil Application No. 7360 of 2017, In Letters Patent Appeal No. 892 of 2017
Decided On : 03-10-2017
Letter Patent Appeal, Clause 15 - Town Planning and Urban Development Act, 1976, Sections 64, 65 - provisions of the Act, Sections 17 & 65 - Original petitioners -Appellants herein have preferred this appeal under Clause of the Letters Patent challenging the judgment and order dated passed by the learned single Judge in Special Civil Application of by which the said petition has been dismissed -Petitioners are the owners of the land bearing Survey Advocates Appeared :-measuring situated In the Area Development Authority declared its intention to develop a Town Planning Scheme of the Town Planning and Urban Development Act - Land in question was brought within the area of the proposed town planning scheme -On the UADA submitted a Draft Town Planning Scheme to the State Government for its sanction -State Government accorded its sanction to the Draft Scheme known as Town Planning Scheme vide Notification dated –Held, Judgments relied upon by learned Senior Advocate are concerned there is no dispute about the proposition of law laid down therein in the facts and circumstances of the present case and the aforesaid discussion, none of the decisions relied upon by learned Senior Advocate would be of any assistance to the petitioners -State Government has not made any substantial change in the Preliminary Town Planning Scheme as contended by the petitioners -When the Town Planning Officer materially erred in allotting four different Final Plots to the petitioners the State Government was justified in rectifying the error by modifying the preliminary Town Planning Scheme in exercise of powers of the Act and by doing so no prejudice is caused to the petitioners learned single Judge has not committed any error in dismissing the petition -Aforesaid discussion and the reasonings recorded by the learned single Judge we find no merits in this appeal -Appeal is dismissed.
VIPUL M. PANCHOLI, J.
1. The original petitioners, appellants herein, have preferred this appeal under Clause 15 of the Letters Patent challenging the judgment and order dated 05.06.2017 passed by the learned single Judge in Special Civil Application No. 16299 of 2010 by which the said petition has been dismissed.
2. The factual matrix of the case are as under;
The petitioners are the owners of the land bearing Survey No. 296 ad-measuring 4,876 sq. metres situated at Unjha, District Mehsana. In 1993 the Unjha Area Development Authority (hereinafter referred to as “the UADA”) declared its intention to develop a Town Planning Scheme u/s.42(1) of the Gujarat Town Planning and Urban Development Act, 1976 (for short, “the Act”). The land in question was brought within the area of the proposed town planning scheme. On 24.08.1995 the UADA submitted a Draft Town Planning Scheme to the State Government for its sanction. The State Government accorded its sanction to the Draft Scheme known as Town Planning Scheme No. 6 vide Notification dated 09.06.1999
3. It is the case of the petitioners that as per the sanctioned Draft Town Planning Scheme, the land belonging to the petitioners bearing original Survey No. 2 96 ad-measuring 4,876 sq. metres was proposed to be allotted Final Plot No. 207 ad-measuring 3,990 sq. metres. The Town Planning Officer issued notice to the petitioners inviting objections/suggestions on the proposed town planning scheme. It appears that no objections/suggestions were submitted by the petitioners at the relevant time. Thereafter, the Town Planning Officer forwarded a tentative reconstitution plan to the UADA vide its letter dated 06.05.2003 inviting further objections/suggestions. As per the tentative reconstitution plan, it was decided to allot Final Plot No. 189 ad-measuring 3,875 sq. metres in lieu of original Survey No. 296 ad-measuring 4,876 sq. metres (instead of Final Plot No. 207 as per the sanctioned Draft Town Planning Scheme).
4. On 09.05.2005 the Town Planning Officer declared his decision about the Preliminary Town Planning Scheme No. 6 and submitted the same to the State Government for sanction under the provisions of Section 64 of the Act. As per the Preliminary Town Planning Scheme prepared by the Town Planning Officer, instead of Final Plot No. 189, the Town Planning Officer allotted four different Final Plots viz. Final Plot Nos. 107, 224, 227 and 229, total ad-measuring 3,876 sq. metres, in lieu of original Survey No. 296-original Final Plot No. 207. The State Government accorded sanction to the Town Planning Scheme No. 6 u/s.65 of the Act with a further modification on 05.07.2007 that as per the sanction given by the State Government, instead of four Final Plots (as proposed by the Town Planning Officer while preparing the Town Planning Scheme No. 6), it was proposed to allot Final Plot No. 294 ad-measuring 3,890 sq. metres in lieu of original Survey No. 296 - original Final Plot No. 207 to the land belonging to the petitioners. Accordingly, the State Government modified the Preliminary Town Planning Scheme to the above extent while sanctioning the Scheme.
5. Being aggrieved by the same, the petitioners preferred Special Civil Application No. 26785 of 2007 before this Court. By order dated 10.02.2010, the learned single Judge allowed the petition by setting aside the Preliminary Town Planning Scheme No. 6 insofar as the land belonging to the petitioners was concerned and directed the State Government to take appropriate decision in the matter after considering the provisions of Section 65 of the Act as also the objections/suggestions, if any, that may be filed by the petitioners.
6. In pursuance of the above order, the petitioners submitted their objections/suggestions before the State Government. It is the say of the petitioners that without considering their objections/suggestions in the right perspective and without assigning any reasons, the State Government accorded sanction to the prelimi
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