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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ASHUTOSH J. SHASTRI, J.
DASHRATHJI NATHAJI THAKOR - Appellant
Versus
THE CHIEF TOWN PLANNING OFFICER - Respondent
SPECIAL CIVIL APPLICATION NO. 12533 of 2020
Decided On : 10-12-2021
Constitution of India, 1950 - Article 226 – Writ petition - Writ of Mandamus - Gujarat Town Planning and Urban Development Act, 1976 - Section 40(3) (c), (f), (g) and (h), 42(1), 48(A), 48(2) and 68 read with Rule 33 - Appellant contends that premises in question which petitioners are occupying as joint owners and occupants and are also paying regularly taxes to Municipal Corporation, having electricity connection as well and not encroachers nor unauthorized occupants of land in question and as such, before issuance of impugned notices, these relevant facts ought to have been noticed by authority – Respondent contended that on sanctioning of draft Scheme land would vest in Corporation, land vests with implementing authority and as per provisions Section 48(A) of the Act, notices were issued for implementing Scheme for purposes of under clause (c), (f), (g) and (h) of sub-Section (3) of Section 40 of Act - After providing requisite opportunity in respect of their objections, final orders also came to be passed, which orders are already attached to affidavit and as such, contention raised in petition in present form does not required to be entertained - Held, when even after challenge to notices, a further order is passed at length in which, petitioners have participated in process of adjudication of grievance and said exercise of powers by authority are also in conformity with principles of natural justice and procedure by law established - There appears to be no legal infirmity in action sought to be challenged before this Court by way of present petition - Several judgments have been placed before Court for consideration, but background of circumstance would clearly indicate none of decisions, which have been cited, are of any assistance to petitioners, especially when background of fact is quite distinct from those cases, having perused said decisions cited by petitioners, Court is of opinion that no case is made of to interfere - If action is sought to be initiated in respect of performing statutory duty and pursuant to sanction of Scheme, such action under Section 66 read with Rule 33 of Rules initiated by implementing agency, no relief of injunction be granted, otherwise such kind of relief would tantamount to be restraining Corporation from performing statutory duty cast upon them for implementation of Town Planning Scheme - There appears to be no merit in any of contentions raised by petitioners – Appeal dismissed.
ORDER :
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:-
B. Issue Writ of Mandamus or any other appropriate Writ, Direction or Order in the nature of Mandamus and quash and set aside the impugned Notice dated 28.01.2020 Ref. No. EST/ TPS(DRAFT)/EXE/ NWZ/65/140 and as well as quash and set aside the impugned Notice dated (03.03.2020 Ref. No. EST/TPS(DRAFT)/EXE/NWZ/65/110 both above issued under the Section 68 read with Rule 33 of the Gujarat Town Planning and Urban Development Act, 1976 to the petitioners by the Assistant Estate Officer/Asst. Corporation. T.D.O, Ahmedabad Municipal
C. Issue Writ of Mandamus or any other appropriate Writ, Direction or Order in the nature of Mandamus and direct the respondent authorities not to demand or take the possession of the strips of lands for the construction of road in respect of the TPS No.65 in the FP No.156/1 & 156/2 of block/survey No.55 and the FP No.224 of block/survey No.122 (Jagatpur- Chenpur-Tragad-Chandkheda) from the petitioners in any manner without following the provisions of law pendente lite.
D. Issue Writ of Mandamus or any other appropriate Writ, Direction or Order in the nature of Mandamus and direct the respondent authorities not to proceed with any construction of road or any other activity which would change the nature of the land bearing old block/survey No.55 and old block/survey No. 122 pendente lite.
E. Issue Writ of Mandamus or any other appropriate Writ, Direction or Order in the nature of Mandamus and direct the respondent authorities to consider in true spirit the representations/objects of the petitioners and take necessary/appropriate actions in respect of the TPS No.65 in the FP No.156/1 & 156/2 of block/survey No.55 and the FP No.224 of block/survey No.122 (Jagatpur- Chenpur-Tragad Chandkheda).
F. Pass such other and further necessary relief/s as the circumstances of the case may require.
2. The background of facts on which the petition is brought before the Court is that the petitioners are joint owners and occupants of old Survey No.55 bearing Final Plot (FP) Nos.156/1 and 156/2 and old Block/ Survey No.122, bearing FP No.224 of village Jagatpur, District Ahmedabad. The respondent authority by virtue of the provisions contained under the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred as ‘the Act’) has implemented the Town Planning Scheme No.65- Jagatpur- Chenpur- Tragad- Chandkheda in old Block/ Survey No.55, bearing FP Nos.156/1 and 156/2 and in old Block/ Survey No.122 bearing FP No.224 of village Jagatpur and after such implementation, entire block/ Survey No.55 came to be divided into two Final Plots, namely 156/1 and 156/2, and accordingly, each final plot admeasured 12191 Sq. Mtrs.
3. On account of such action of implementation of the Town Planning Scheme under Section 48(2) of the Act, the petitioners being aggrieved by said action made a representation to the Senior Urban Planning Officer of AUDA on 2.5.2013 and raised serious objections in respect of the Town Planning Scheme No.65 insofar as it relates to FP Nos.156/1 and 156/2 of Block / Survey No.55 as well as Final Plot No.224 of Block/ Survey No.122, as stated above by contending that the decision to divide Block No.55 into two parts is clearly an unlawful action.
4. It is the case of the petitioners that the petitioners were not given a personal hearing on the issue and it was also contended that the Chief Urban Town Planning Officer of AUDA agreed to construct 12 meter road in Block/ Survey No.117, which is just behind FP Nos.156/1 and 156/2 and Final Plot No.224 instead of constructing in Block No.155. As a result of this, on 12.8.2013, the petitioners addressed another letter to the Chief Urban Town Planning Officer, AUDA urging to allot Final Plot No.224 of Block/ Survey No.122 behind FP Nos.156/1 and 156/2 of Block No.155 and requested to take necessa
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