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2022 Supreme(Online)(Guj) 9776
HIGH COURT OF GUJARAT
SANDEEP N. BHATT, J
SURESHBHAI RAMJIBHAI GOYANI – Appellant
Versus
STATE OF GUJARAT – Respondent
SPECIAL CIVIL APPLICATION NO. 15348 of 2016 | CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2016 | CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2016
For the Appellants/Petitioners:MR ANSHIN DESAI, SENIOR ADVOCATE, MR VAIBHAV V GOSWAMY
For the Respondents:MS JYOTI BHATT, AGP, MR DHAVAL G NANAVATI, MR DHAVAL DAVE, SENIOR ADVOCATE, MR RUTUL P DESAI, MR U I VYAS, MR VIVEK V BHAMARE
The court reaffirmed that the Town Planning Scheme's legal validity must prevail over individual ownership claims, prioritizing public interests and statutory obligations under the act.
Headnote:(A) Gujarat Town Planning and Urban Development Act, 1976 - Sections 40, 45, 48, 65, 68, and 69 - Challenge to provisions and Town Planning Scheme No. 16 - Petitioners sought to declare certain sections ultravires and to restrain eviction from plots under attack due to inconsistencies in ownership and possession claims - Changes made in property rights resulting from Town Planning Scheme must respect prior ownership and public interest. (Paras 1.1, 1.3, 11.1, 11.20, 11.28, 17.2)
(B) Constitutional Law - Article 226 - Writ jurisdiction - Writ not to be issued unless legal rights established - The petitioners alleged violation of constitutional rights, but the court found no compelling evidence of such breach. (Paras 12.1, 12.6-12.8, 17.1)
(C)
Findings of Court:
The Town Planning Scheme has attained finality and follows proper notifications; petitioners lack legal standing to claim ownership against it; orders for eviction supported by established procedure. The rights and interests of public should prevail over private claims, leading to a dismissive decision towards private residential arguments of covered parties. (Paras 11.20, 13.1, 17.3) Findings support enforcement of T.P. Scheme and complying with statutory duties by authorities.
Result: Petition dismissed with no order as to costs.
| Table of Content |
|---|
| 1. challenge to gujarat town planning act and scheme (Para 1) |
| 2. petitioners' occupation and claims regarding final plot no. 42 (Para 3 , 4 , 5 , 6 , 7) |
| 3. determination of possession rights and implications under t.p. scheme (Para 10 , 13 , 14) |
| 4. reinforcement of town planning scheme as statutory obligation (Para 12 , 15) |
| 5. conclusion: dismissal of petition with extensions granted (Para 17) |
JUDGEMENT
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 :
- “48(A) 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 declare that sections 40, 45, 48, 65, 68 and 69 of the Gujarat Town Planning and Urban Development Act, 1976, are ultravires to the Constitution of India;
- (Original Prayer - Not pressed) (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
