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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANDEEP N. BHATT, J.
Sureshbhai Ramjibhai Goyani & 16 others – Appellants
Versus
State Of Gujarat & 9 others – Respondent
R/Special Civil Application No. 15348 of 2016 with Civil Application (for interim relief) no. 1 of 2016, Civil Application (For Orders) No. 3 of 2016
Decided on : 12-10-2022
PETITIONER'S CHALLENGE TO THE VALIDITY OF TOWN PLANNING SCHEME NO.16 (KAPODARA), SURAT AND THE PROVISIONS OF THE GUJARAT TOWN PLANNING AND URBAN DEVELOPMENT ACT, 1976, WAS DISMISSED. THE COURT HELD THAT THE PETITIONERS HAD NO LEGAL RIGHT TO HOLD POSSESSION OF THE LAND IN QUESTION, WHICH WAS ALLOTTED TO THE PRIVATE RESPONDENTS PURSUANT TO THE SANCTIONED AND FINALIZED TOWN PLANNING SCHEME, AS IT HAD BECOME THE ACT.
Fact of the Case:
The petitioners challenged the validity of Town Planning Scheme No.16 (Kapodara), Surat and the provisions of the Gujarat Town Planning and Urban Development Act, 1976. The petitioners claimed that they were in possession of the land in question since 1984 and had constructed residential houses on it. They argued that the Town Planning Scheme was not implemented as far as the private respondents were concerned and that the petitioners had been granted development permission and non-agricultural permission for the land in question. The petitioners also contended that the provisions of the Act were ultra vires the Constitution of India and that the Town Planning Scheme was arbitrary and discriminatory.
Finding of the Court:
The court found that the petitioners had no legal right to hold possession of the land in question. The court noted that the land in question was allotted to the private respondents pursuant to the sanctioned and finalized Town Planning Scheme, which had become the Act. The court also found that the petitioners had not purchased any part of the land by way of any sale deed till the finalization of the T.P.Scheme and that the sale proceedings between the Society and the original land owner – Champak Hira were cancelled in RTS proceedings. The court further found that the petitioners had been granted non-agriculture permission for the land in question on 30.12.2009 by the Authorities concerned and that the petitioners had been granted regularization permission vide order dated 09.10.2015, which was cancelled on 20.08.2016 without even issuing notice to the petitioners.
Issues: Whether the petitioners can hold the possession of the land in question i.e. Final Plot No.42 admeasuring 1536 sq.mtrs., that too without any legal right, pursuant to the sanctioned and finalisation of the Town Planning Scheme No.16 (Kapodara), Surat by the Government since it has become the Act.
Ratio Decidendi: The court held that the petitioners had no legal right to hold possession of the land in question, which was allotted to the private respondents pursuant to the sanctioned and finalized Town Planning Scheme, as it had become the Act. The court also held that the petitioners had not purchased any part of the land by way of any sale deed till the finalization of the T.P.Scheme and that the sale proceedings between the Society and the original land owner – Champak Hira were cancelled in RTS proceedings. The court further held that the petitioners had been granted non-agriculture permission for the land in question on 30.12.2009 by the Authorities concerned and that the petitioners had been granted regularization permission vide order dated 09.10.2015, which was cancelled on 20.08.2016 without even issuing notice to the petitioners.
Final Decision: The petition was dismissed, with no order as to costs. The court expected that the Surat Municipal Corporation, Surat would implement the Town Planning Scheme No.16 (Kapodara), Surat by performing its statutory duty, in its true spirit, in the interest of public at large. The court also expected that all the parties would cooperate in the process of implementation of the Town Planning Scheme No.16 (Kapodara), Surat.
JUDGMENT :
1.1 Initially, the main challenge in this petition is made by the petitioners to :- (i) some of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 and prayed to declare ultravires to the Constitution of India; (ii) the Town Planning Scheme No.16 (Kapodara), Surat as ultravires; and (iii) restrain the Authorities concerned from evicting the petitioners from their plots being part and parcel of Town Planning Scheme No.16 (Kapodara), Surat.
1.2 It is noted that since the petitioners have challenged the vires of the Act, the matter was initially listed and heard by the Division Bench of this Court.
The learned advocate for the petitioners, on instructions, made a statement before the Division Bench of this Court that the petitioners are no longer interested in pursuing the reliefs claimed by which challenge was made to the vires of the provisions of the Gujarat Town Planning and Urban Development Act, 1976 and thereby he did not press this petition qua challenge to vires. The Division Bench of this Court has accepted the statement and vide its order dated 21.01.2020 observed that “ In view of the above statement, this petition, now being cognizable by the learned Single Judge may be listed before the appropriate Court having jurisdiction to hear such matters.”
1.3 In view of above, the matter is listed before this Court for hearing qua other prayers only.
Reliefs, as prayed for :
1.4 Thus, now the only prayers as prayed for by the petitioners in this petition are as under :
(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the Town Planning Scheme No.16 – Kapodara, Surat City, is ultravires; (Original Prayer)
(C) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that there is error apparent in framing of the Town Planning Scheme No.16 – Kapodara, by declaring said scheme as ultravires to section 65 of the Gujarat Town Planning and Urban Development Act, 1976, inasmuch as though holding the sub-plots of survey nos.25/1 and 25/2 of village Kapodara and permission to carry out construction have been given as back as in 1984 i.e. prior to declaration of intention to frame the scheme; (Original Prayer)
(C) 1Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the Gujarat Town Planning and Urban Development Act, 1976 (President Act No.27 of 1976) is ultravires to Part IX and IX-A of the Constitution of India, 1950; (Amended Prayer)
(C) 2Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the provisions of the Gujarat Town Planning and Urban Development Act, 1976, ceases to have any operation on and from May 31, 1994 and any action taken under the said Act thereof is ultavires and void ab initio; (Amended Prayer)
(C) 3 Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that sub-section (3) of section 65 of the Gujarat Town Planning and Urban Development Act, 1976 is ultravires as it amounts to abdication of essential legislative function in favour of the Executive; (Amended Prayer)
(D) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the Town Planning Scheme No. 16 – Kapodara, Surat City, is ul
A person cannot hold possession of land without any legal right, pursuant to the sanctioned and finalization of a Town Planning Scheme, as it becomes the Act.
Authority under the Act of 1976 exercises a quasi-judicial power which implies observing of the principles of natural justice and to conclude that the occupants are not entitled to occupy the plots. ....
The Court upheld the Assistant Estate Officer's eviction order under the Town Planning Act, confirming that petitioners' objections were unsubstantiated given their failure to challenge the Town Plan....
Point of law: Notwithstanding anything contained in section 70, a town planning scheme may at any time be varied by a subsequent scheme made, published and sanctioned in accordance with the provision....
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