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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, J.
Babubhai Samatbhai Dolar – Appellant
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 8537, 9681, 9725 of 2019, Civil Application (For Direction) No. 1 of 2020
Decided on : 13-06-2022
Town Planning Scheme - Quashing of Notice - Shifting of Road Line - Sanctioned Town Planning Scheme No.34 - Section 70 of the Gujarat Town Planning and Urban Development Act, 1976 - [41, 42, 48, 50, 51, 52, 65, 67, 68] - The court dismissed the petitions seeking relief of quashing and setting aside the notice dated 28.03.2019 issued by the respondent No.3 Executive Engineer of Surat Municipal Corporation and seeking further direction to shift 24 meter town planning road to avoid demolition of the residential houses of the petitioners. The court found that the town planning scheme was framed in accordance with the law and the petitioners had not raised any objection till the issuance of the impugned notices. The court also observed that the project for laying down the 24 meter road was essential in public interest and that there was no infirmity or illegality in the framing of the town planning scheme. The court further noted that the petitioners' main purpose was to save the residential units against the laying down of the 24 meter road covering the water-creek, and that the redistribution of land amongst the final plots would not affect the laying down of the road. The court also considered the technical aspects of the project and found that any interference for shifting the alignment would require major technical upheaval. The court did not deem it fit to treat this as a case for variation in the town planning scheme under Section 70 of the Act. The court also observed that the respondent-corporation's statement to use a width of 21 meters instead of 24 meters for a patch of 450 meters alongside the houses of the petitioners would protect their interests to a great extent. The court directed the respondent-corporation to make an alternative arrangement for rehabilitating the petitioners who would lose their residential premises and to consider their application for rehabilitation. The petition was disposed of with these observations.
Fact of the Case:
The petitions sought relief of quashing and setting aside the notice dated 28.03.2019 issued by the respondent No.3 Executive Engineer of Surat Municipal Corporation and seeking further direction to shift 24 meter town planning road to avoid demolition of the residential houses of the petitioners. The petitioners also prayed for setting aside the notification dated 03.07.2013 by which town planning scheme No.34 was sanctioned. The petitioners argued that the town planning scheme required to be relooked particularly from the point of unequal redistribution of the final plots and that the laying down of the 24 meter road covering the water-creek was fallacious. The respondent-corporation claimed that the town planning scheme was framed in accordance with the law and that the petitioners had not raised any objection till the issuance of the impugned notices. The respondent-corporation also stated that the project for laying down the 24 meter road was essential in public interest and that there was no infirmity or illegality in the framing of the town planning scheme. The court considered the technical aspects of the project and found that any interference for shifting the alignment would require major technical upheaval. The court did not deem it fit to treat this as a case for variation in the town planning scheme under Section 70 of the Act.
Finding of the Court:
The court found that the town planning scheme was framed in accordance with the law and that the project for laying down the 24 meter road was essential in public interest. The court observed that the petitioners had not raised any objection till the issuance of the impugned notices and that the redistribution of land amongst the final plots would not affect the laying down of the road. The court also considered the technical aspects of the project and found that any interference for shifting the alignment would require major technical upheaval. The court did not deem it fit to treat this as a case for variation in the town planning scheme under Section 70 of the Act.
Issues: The main issues raised by the petitioners were the unequal redistribution of the final plots and the protection of the residential units against the laying down of the 24 meter road covering the water-creek. The court also considered the technical aspects of the project and found that any interference for shifting the alignment would require major technical upheaval.
Ratio Decidendi: The court found that the town planning scheme was framed in accordance with the law and that the project for laying down the 24 meter road was essential in public interest. The court observed that the petitioners had not raised any objection till the issuance of the impugned notices and that the redistribution of land amongst the final plots would not affect the laying down of the road. The court also considered the technical aspects of the project and found that any interference for shifting the alignment would require major technical upheaval. The court did not deem it fit to treat this as a case for variation in the town planning scheme under Section 70 of the Act.
Final Decision: The petition was disposed of with the court's observations that the respondent-corporation's statement to use a width of 21 meters instead of 24 meters for a patch of 450 meters alongside the houses of the petitioners would protect their interests to a great extent. The court directed the respondent-corporation to make an alternative arrangement for rehabilitating the petitioners who would lose their residential premises and to consider their application for rehabilitation.
JUDGMENT :
[1] These three petitions are filed with similar facts and for similar reliefs pertaining to particular town planning road of sanctioned Town Planning Scheme No.34 covering village Magob of Surat. The reliefs prayed for are also identical in nature for shifting 24 meters road line to avoid demolition of the residential houses of the petitioners in each of these three petitions. Considering the commonality of subject matter and the requests made on behalf of both the sides, these three petitions are taken up for joint hearing and dismissal. The facts are recorded from the lead matter being Special Civil Application No.8537 of 2019.
[2] The petitions are filed seeking relief of quashing and setting aside the notice dated 28.03.2019 issued by the respondent No.3 being Executive Engineer of Surat Municipal Corporation and seeking further direction to shift 24 meter town planning road so as to avoid demolition of the residential houses of the petitioners. It is also prayed that if the width of the town planning road is reduced to 18 meter then the demolition of the residential houses of the petitioners would be prevented. The petitioners have also made prayer for setting aside the notification dated 03.07.2013 by which town planning scheme No.34 was sanctioned. The reliefs prayed qua the block No.106 of village Magob and to reconstitute the final plot covering block No.106.
[2.1] The petitions also have prayed for variation in the town planning scheme No.34 qua block No.106 in exercise of powers under Section 70 of the Gujarat Town Planning and Urban Development Act, 1976 (for short “the Act”). The petitioners 19 in numbers are the residents of Vivekanand Society, situated at village Magob, which was later on included in the area of Surat Municipal Corporation. It is submitted that the residents of the Vivekanand Society belong to poor strata of society and were located on old survey No.56 which was thereafter, given block Nos.104, 105 and 106 which were divided in several residential plots now occupied by the respective residents and so far as the petitioners are concerned, the plot of land concerned is original block No.106 allotted final plot No.28 which has been sub-divided in 420 residential plots.
[2.2] It is the case of the petitioners that original owner of the land being survey No.56 of village Magob was one Naranbhai Ranchhodbhai which was later on divided into three blocks being Nos.104, 105 and 106 and it was the original owner who had sought for development permission from the then village Panchayat which had granted development permission way back in the year 1975 and accordingly, construction of 420 residential units came up. It is submitted that after following due procedure only, according to sanctioned layout plan by the Gram Panchayat, the original owner had given the possession of such plots to the individual persons like the petitioners by executing the possession receipts based on which the allotted persons started putting up their small construction for residential units.
[2.3] Learned advocate has drawn attention of this Court to the documents at Annexure E to indicate documentation which had taken place in the form of possession receipt by way of illustration and the documents of Surat Municipal Corporation like assessment as a residential house and the tax bills which the petitioners have been paying regularly. Learned advocate has also drawn attention to the electricity bills so as to support his case that the petitioners were indeed occupiers of the said premises since long period. It is submitted that as the petitioners belong to lower strata of the society and were uninterruptedly using the premises for their residential purpose, they were quite aware of the procedure undertaken under the Act when the notices were issued to the owners of the plots of land. It is submitted that as the petitioners were occupying the land only on the basis of possession receipt, there was no transfer in the revenue
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