1. Rule. Mr. J.P. Bhatt, learned Advocate appears for respondent nos. 1 and 3 and waives notice of rule, Ms. Asmita Patel, learned Assistant Government Pleader appears for respondent nos. 2, 3 and 4 and waives notice of rule.
2. As such by order dated 23.12.2011 this Court (Coram: S.R. Brahmbhatt, J.) has passed the following order and therefore the matter is taken up for final hearing today.
“Notice for final disposal returnable on 23.01.2012. Direct service is permitted.”
Hence, the matter is taken up for final hearing today.
3. Mr. Tattvam Patel, learned Advocate for the petitioner submits that the petitioners are now owners of land bearing survey no. 196/2 which is falling within the area of Town Planning Scheme No.
1. Mr. Patel further pointed out that original survey no. 196/2 was allotted original plot no. 26 and by way of reconstitution in the preliminary scheme, the original owners have been allotted final plot no. 31 admeasuring 29091 sq.mtrs. It is the case of the petitioners that by virtue of sale-deeds executed between the parties on 6.7.2011 and 19.7.2011 the petitioners have become owners of the land in question.
4. It appears from the averment made in the petition that the preliminary scheme no.1 has been sanctioned by the State Government by Notification issued in 1988. It is also averred in the petition that the original owner who was so allotted final plot no. 31 was given possession of the said final plot on 16.1.2010. However, the respondent Corporation till date, has not implemented the scheme qua 18 mtrs. road from Digvijay Circle to the land in question which is to be laid down as per sanctioned Town Planning Scheme and 12 mtrs. road between final plot no. 26 and final plot no. 34. It is also evident from the record of the petition that for the purpose of implementation the petitioners moved the respondent authorities by filing representations on 24.10.2011, 9.11.2011 and 19.11.2011 and lastly on 3.12.2011. As none of the representations have been replied the present petition is filed.
5. Preliminary Scheme has been sanctioned vide Notification under section 65 of the Act vide Notification dated 2.3.1988. As far as land which forms part of the Town Planning Scheme by virtue of provisions of section 67(a) would stand transferred in favour of Jamnagar Municipal Corporation - the appropriate authority on the said date itself. At this juncture, it would be advantageous to refer to the decision of the Hon'ble Apex Court in the case of The Municipal Corporation for Greater Bombay and another V/s. The Advance Builders (India) Pvt. Ltd. and others reported in AIR 1972 SC 793 wherein, it is observed as under:-
“10. The Scheme and the regulations made thereunder must be read as supplemental to the Act and, when that is down, there is no room for any doubt whatsoever that the local authority is entirely responsible for removing the huts, sheds, stables and other temporary structures which contravene the Town Planning Scheme. The Scheme gives a statement of works to be constructed under the Scheme which comprises a number of roads and the drainage system. The Scheme then specifies which final plots under the Scheme are reserved for public or municipal purposes. In the section dealing with the regulations controlling the development of the area under the Scheme, the various final plots are mentioned and directions have been given as to how they are to be utilised. Regulation 6 is as follows:-
"No hut or shed whether for residential user or otherwise, or temporary moveable shops on wheels or such other temporary structures shall be allowed within the area of the Scheme".
It is possible to construe this regulation as prospective in operation, because Regulation 9 provides that any person contravening any of the aforesaid regulations or any of the provisions of the Scheme is liable to be prosecuted and fined. As a part of the Scheme, there is a Redistribution and Valuation Statement which shows which are the original plots, who were the owners thereof, whether those plots were encumbered or leased out, who the mortgagees and lessees were, what is the number of the reconstituted or the final plot allotted to such owners, what contributions have to be made by the owners and what additions or deductions are to be taken into account while deciding the contributions. In the case of some of the final plots, certain rights are given and liabilities imposed and, in suitable cases, compensation also is directed to be paid. And, then, to this Redistribution and Valuation Statement eleven Notes are appended which are important. Note 1 says that all rights of mortgagors or mortgagees, if any, existing in the original plots are transferred to their corresponding final plots. Note 2 deals with the rights of lessors and lessees in the original plots. By Note 3, all rights of passage hitherto existing are extinguished. By Note 4, agreements in respect of original plots are transferred to the final plots. By Note 5, the tenures of all original plots are transferred to the corresponding final plots. Note 6 permits the original plot-owners to remove their detachable material on the plot if they are deprived of the same. They are required to remove their wire-fencing, compound wall, sheds, huts or other structures. They can do so within three months from the date on which the final Scheme comes into force, the idea being that the final plots must be clean plots for being allotted to another under the Scheme. This permission under Note 6 has given not because the local authority has no power to remove wire-fencing, huts, sheds, etc.; that power is there as already shown under Section 55. But this is a concession made in favour of the owner. Since the owner is required to remove himself from this plot, he is permitted to take away whatever material he could easily remove. And, then, Note 11, to which reference has already been made, provides that all huts, sheds, stables and such other temporary structures including those which do not conform to the regulations of the Scheme, are required to be removed within one year from the date the final Scheme comes into force. The Note refers not merely to huts, sheds, stables which do not conform to the regulations of the Scheme, but also to all huts, sheds, stables and such other temporary structures. Whosoever the owner or the occupant of the same might be, he is required to remove the same within one year from the date the Final Scheme comes into force. This is an important regulatory provision which has the effect as if enacted in the Act. If the owner or the occupant of these huts, sheds and stables does not remove the same within one year from the date the final Scheme comes into force, he would be contravening the provisions of the Scheme and, thereupon, the local authority will have the power under S. 55 (1) (a) to remove or pull down these huts, sheds, stables, etc. Note 11 has taken due note of the fact that, if the huts, sheds, stables, etc. are demolished, the owners or occupants thereof will become dishoused. Hence, further provision is made that persons thus dishoused will be given preference in the allotment of land or accommodation in Final Plot No.16 allotted to the Corporation. In other words, it is implicit in this Note that the Corporation may not hesitate to pull down or remove these huts and sheds, etc., because provision is already made for allotment of land in the Corporation's Plot. The Note, therefore, indirectly establishes that it is the primary duty of the Corporation as the local authority to remove all offending huts, sheds, stables and temporary structures in the whole area under the Scheme and not merely from those areas which are allotted to the Corporation under the Scheme.
12. It is clear, therefore, on a consideration of the provisions of the Bombay Town Planning Act, 1954 and especially the sections of that Act referred to above, that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. It has been long held that, where a statute imposes a duty the performance or non-performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done (See Halsbury's Laws of England, Third Edition, Vol.II, p.90).”
6. This Court (Coram : M.R. Shah, J.) in the case of Amarsinh Shanaji Thakore Vs. State of Gujarat, reported in 2004 GHJ pg.127 has observed that it is the boundant duty of the respondent corporation to implement the scheme in accordance with law after following the procedure as prescribed in the Act and Rules.
7. Mr. Bhatt however, submitted that litigation is pending before the District Court, Jamnagar at the stage of pronouncement of judgment. Mr. Bhatt has not been able to point out that there is any order not to implement the scheme. In view of the aforesaid, respondent no.1 being implementing authority is duty bound to implement the same. Respondent no.1 is directed to implement the scheme after following due procedure under the Act and relevant rules after giving notice to all occupiers and affected persons as expeditiously as possible but not later than six months from the date of the receipt of the copy of this judgment.
8. With this observation, the petition is disposed of. Rule made absolute with no order as to costs.
Sd/-
(R.M. Chhaya, J.) M.M.BHATT