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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIRZAR S. DESAI, J.
Hasmukhbhai Gopalbhai Patel –Appellant
Versus
The State Of Gujarat – Respondent
R/SPECIAL CIVIL APPLICATION NO. 2964 of 2023 With R/SPECIAL CIVIL APPLICATION NO. 23828 of 2022
Decided on : 14-03-2023
Town Planning Scheme - Land Allotment - Gujarat Town Planning and Urban Development Act, 1976, Section 50(1), Section 65, Section 67, Section 68, Rule 33 - The court dismissed the petition challenging the Town Planning Scheme and the order rejecting the petitioner's objections. The court found that the petitioner was aware of the proposed changes in the scheme but did not raise objections at the appropriate time. The court also noted that the authority had followed the necessary procedures and that the petitioner's claims were factually incorrect. The court held that the petition lacked merit and dismissed it.
Fact of the Case:
The petitioner, the original owner of a piece of land, challenged the allotment of Final Plot Nos.9 and 10 to a third party under the Town Planning Scheme No.39 (Udhna – Limbayat). The petitioner alleged that the Town Planning Officer made arbitrary changes to the scheme without issuing individual notices, and that the Surat Municipal Corporation implemented the scheme selectively and prematurely.
Finding of the Court:
The court found that the petitioner was aware of the proposed changes in the scheme but did not raise objections at the appropriate time. The court also noted that the authority had followed the necessary procedures and that the petitioner's claims were factually incorrect. The court held that the petition lacked merit and dismissed it.
Issues: The main issues were whether the Town Planning Officer followed the necessary procedures in making changes to the scheme, whether the Surat Municipal Corporation implemented the scheme selectively and prematurely, and whether the petitioner's objections were raised at the appropriate time.
Ratio Decidendi: The court held that the petitioner's failure to raise objections at the appropriate time and the factual inaccuracies in the petitioner's claims led to the dismissal of the petition. The court also noted that the authority had followed the necessary procedures in making changes to the scheme.
Final Decision: The court dismissed the petition challenging the Town Planning Scheme and the order rejecting the petitioner's objections. The court found that the petitioner was aware of the proposed changes in the scheme but did not raise objections at the appropriate time. The court held that the petition lacked merit and dismissed it.
JUDGMENT :
ORDER IN SPECIAL CIVIL APPLICATION NO.23828 OF 2022:
1. The matter was heard extensively on 07.03.2023 and it was agreed and understood between the parties that matter was being argued finally. Hence, Rule. Learned advocate Mr.Digant Popat waives of service of notice of Rule on behalf of newly added respondent Nos.6 and 7, learned Assistant Government Pleader Ms.Dharitri Pancholi waives service of notice of Rule on behalf of Respondents State No.1 and 3 and learned advocate Mr.Dhaval Nanavati waives service of notice of Rule on behalf of Respondent No.2 – Surat Municipal Corporation as well as Respondent Nos.4 and 5.
2. Pursuant to the order dated 06.03.2023, on 06.03.2023 learned advocates for the respective parties had come to the chamber of author of this judgment at 5:00 p.m. and had examined the original records. The Court also had orally directed learned Assistant Government Pleader to produce necessary documents for clarity of facts in respect of whether the proposal for carving out Final Plot Nos.9 and 10 was already there at the time of recommanding the Preliminary Town Planning Scheme to the State Government/Chief Town Planning Officer of the Town Planning Department for sanctioning it or it was subsequently decided after recommendation in respect of preliminary Town Planning Scheme No.39 (Udhna-Limbayat) was made by Surat Municipal Corporation. Accordingly, learned Assistant Government Pleader Ms.Dharitri Pancholi had produced relevant documents after serving the copies of those documents upon learned advocates appearing for respective parties and thereafter the matter was heard finally.
3. Heard learned advocate Mr.Hriday Buch for learned advocate Mr.Kumar H. Trivedi for the petitioner, learned Assistant Government Pleader Ms.Dharitri Pancholi for Respondent Nos.1 and 3 – State, learned advocate Mr.Maulik Nanvati with learned advocate Mr.Dhaval Nanavati for Respondent Nos.2, 4 and 5 and learned senior advocate Mr.R.S.Sanjanwala with learned advocate Mr.Digant Popat for Respondent Nos.6 and 7.
4. Brief facts giving rise to the filing of the present petition are stated as under:
4.1 It is the case of the petitioner that the petitioner is the original owner of the land bearing Block No.9 at Limbayat, Tal:Udhna, District: Surat and the land was originally an agricultural land of old tenure and subsequently was converted into non-agricultural land. Once the NA permission was granted, the land was plotted into 360 residential units out of which some of the plots have already been allotted by the petitioner to various third parties.
4.2 Surat Municipal Corporation vide Resolution dated 08.02.1999 declared its intention to make Town Planning Scheme No.39 ( Udhna – Limbayat ) and after the aforesaid intention was published in official government gazette and local news-papers, the draft Town Planning Scheme No.39 was also published in local news-paper on 28.01.2000 and objections in respect of said Town Planning Scheme were invited. The draft Town Planning scheme was sanctioned vide Notification dated 27.07.2000.
4.3 As per the draft Town Planning Scheme No.39, the petitioner was allotted Final Plot Nos.9A and 9B against his Original Plot No.9. According to the petitioner, the State Government exercised its powers under Section 50(1) of the Gujarat Town Planning and Urban Development Act, 1976 (‘TP Act’, for short) and appointed Town Planning Officer for finalisation of Town Planning Scheme but at that stage individual notices were not given to the petitioners and the Town Planning Officer gave its decision on the Preliminary Town Planning Scheme No.39 and submitted the same to the State Government for sanction and accordingly vide Notification dated 19.09.2019 the Preliminary Town Planning Scheme was sanctioned as per Section 65 of the ‘TP Act’.
4.4 Once the Town Planning Scheme was sanctioned, the petitioner was allo
The main legal point established in the judgment is that failure to raise objections at the appropriate time and factual inaccuracies in the petitioner's claims can lead to the dismissal of a petitio....
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....
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 main legal point established in the judgment is 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 ....
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