Heard the learned advocates. Both these petitions have a common subject matter and involve identical questions of law. Both these petitions are, therefore, with the consent of the learned advocates, disposed of by this common judgment. Rule returnable today. The learned advocates appearing for the concerned respondents waive service of Rule.
The petitioners are the occupants of the parcels of lands of land bearing Survey No. 75/B/10, situated at Sabarmati. All the petitioners are injuriously affected by the implementation of the Town Planning Scheme No. 23 (hereinafter referred to as `the TPS-23'). The intention to make the TPS-23 covering the land occupied by the petitioners was declared on 28th August, 1963. The draft scheme was sanctioned by the State Government on 29th November, 1965 and the appointment of the Town Planning Officer was made on 17th December, 1965 and 18th May, 1973. Notice of commencement of duties of the Town Planning Officer was published on 21st December, 1965. The Preliminary Scheme was sanctioned by the State Government under the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the Act of 1976') on 12th December, 1980 and the Final Scheme was sanctioned on 18th December, 1981. The notice of eviction under section 68 of the Act of 1976 has been given to the petitioners on 16th October 1999. Feeling aggrieved, the petitioners have preferred the present petitions.
Mr. Shelat has submitted that the intention to make the Town Planning Scheme was declared under then applicable Bombay Town Planning Act, 1954 (hereinafter referred to as `the Act of 1954'). The Bombay Town Planning Rules, 1955 (hereinafer referred to as `the Rules') made under the said Act envisaged a special notice to be given by the Town Planning Officer to the person interested in any plot or in any particular comprised in the Scheme. He has submitted that the words `person interested' has been construed by the Hon'ble Supreme Court in the matter of JASWANT SINGH MATHURASINGH & ANR VS AHMEDABAD MUNICIPAL CORPORATION (AIR 1991 SCW 2515) to include the `tenant' or `sub-tenant' of such plots also. Mr. Shelat has submitted that the petitioners are the tenants/sub-tenants/occupants of the parcels of the lands of the above referred Survey No. 75/B/10 for more than 40 years i.e. on the date of the declaration of the intention to make the Town Planning Scheme the petitioners were residing/having their business/profession over the said land. The petitioners were, therefore, entitled to a `special notice' referred to hereinabove and an opportunity of lodging their objection. In the present case, indisputably, the respondent Town Planning Officer has failed to give such `special notice' to the occupants. The TPS-23, therefore, to the extent it affects the rights of the petitioners deserves to be quashed and set aside. In the alternative, he has submitted that the petitioners be given an alternative accommodation to shift their residence/business/profession to. Mr. Shelat has submitted that the the intention to make the Town Planning Scheme was published in the year 1963 and the Draft Scheme was sanctioned in the month of November 1965. The petitioners' right to receive Special Notice as envisaged in Rule 21 (3) of the Rules got crystalised on the said date. Irrespective of any change in the Act or the Rules made thereafter, the petitioners had right to be given a Special Notice under the Rules.
In support of his arguments, he has also relied upon the judgment of the Hon'ble Supreme Court in the matter of MUNICIPAL CORPORATION VS CHELARAM & SONS & ANR ( {1996} 11, SCC, 127). He has further submitted that keeping in view the necessity for road widening and prompt implementation of the Town Planning Scheme, instead of avoiding the Town Planning Scheme in so far as it affects the petitioners, the respondent-Corporation should be directed to give alternative accommodation to the petitioners as has been done by the Hon'ble Supreme Court in the matter Jaswant Singh (supra).
The learned advocates Mr. Chhaya and Mr. Desai have appeared for the Corporation and have contested the petition. They have submitted that even if it is accepted that the Special Notice as envisaged in Rule 21 (3) of the Rules was mandatory, such notice is required to be given to only those persons who were in possession of the land in question on the date of the Draft Town Planning Scheme. In the present case, neither of the petitioners has produced any evidence to establish his presence on the parcel of the land in question on the date of the publication of the draft scheme. They have submitted that the petitioners having failed to establish their presence on the parcel of the land in question at the relevant time, the TPS-23 can not be vitiated for want of Special Notice as envisaged in Rule 21 (3) of the Rules. They have relied upon the notice dated 15th March, 1977, issued upon the owners of the land under section 32 of the Act of 1954. It is submitted that the notice as envisaged in Rule 21 (3) of the Rules is required to be given before the Town Planning Officer proceeds to deal in detail with the particular portion of the scheme. It is, evident that it was in the month of March 1977 that the Town Planning Officer dealt in detail with the land bearing Survey No. 75-B-10 of Sabarmati. The Rules as they prevailed in the year 1977 should, therefore, be applicable to the facts of the present case. Rule 21 (3) of the Rules relied upon by Mr. Shelat had in the meantime undergone a substantial change i.e. then existing sub-rule (3) was substituted under the Government Notification dated 13th May, 1974. The substituted sub-rule (3) reads as under :
The Town Planning Officer shall before proceeding to deal with the matters specified in clauses
(v), (vi) and (viii) of sub-section (1) of section 32 publish a notice in the Official Gazette and in one or more newspapers circulating within the jurisdiction of the local authority. Such notice shall specify the matters which are proposed to be dealt with by the Town Planning Officer and State that all persons who are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of fifteen days from the publication of the notice in the Official Gazette. Such notice shall also be posted at the office of the Town Planning Officer and of the local authority and the substance of such notice shall be posted at convenient places in the said locality.
The plain reading of the said substituted sub-rule (3) envisages a public notice to be given which should be published in the Official Gazette and in one of the news papers. Such notice is also required to be posted at the office of the Town Planning Officer and of the Local Authority and at the convenient places in the particular locality. Hence, no special notice or personal notice to either the owner or any person interested is envisaged under the substituted sub-rule (3). They have submitted that the Town Planning Officer proceeded to deal in detail with the land in question in the year 1977. The Town Planning Officer, therefore, was under no obligation to give such personal notice to any of the petitioners. The non-giving of the special/personal notice to the petitioners shall not vitiate the TPS-23 as is averred by the petitioners. They have submitted that in response to the public notice given under amended sub-Rule (3) of Rule 21 of the Rules, neither of the petitioners has communicated his objection. The question of giving opportunity of stating their views as envisaged in sub-rule (4) thereof did not arise. Hence, the Town Planning Officer can not be said to have acted in violation of the statutory provisions, nor the Town Planning Scheme suffers from the fundamental breach which should vitiate the scheme. As regards the grant of alternative accommodation, both the learned advocates have submitted that the Town Planning Act does not make obligatory to grant an alternative accommodation. However, the Municipal Corporation has framed a scheme whereunder the persons affected, who were residing on the land in question since the year 1976 or therebefore, have been assured the alternative accommodation. In the event any of the petitioners makes an application to the Municipal Corporation and establishes that he was in occupation of the land in question for residence at least since 1976, the benefit of alternative accommodation shall be granted to such petitioner also. In support of their contention, they have relied upon the judgment of this court in the matter of SHILPA PARK CO.OP.SOCIETY LTD. VS SURAT URBAN DEVELOPMENT AUTHORITY & ORS (1996 (2) GLR 707) and of the Hon'ble Supreme Court in the matter of MEMON BACHUBHAI DAWOODBHAI & CO. VS STATE OF GUJARAT & ANR. (AIR 1994 SC 480), and of MUNICIPAL CORPORATION VS M/S CHELARAM & SONS & ANR. (AIR 1997 SC
31) .
In the matter of Jaswant Singh (supra), the Hon'ble Supreme Court has examined the scope and ambit of Rules 21 (3) and 21 (4) of the Rules and has construed the words 'person interested' occurring in the said Rule 21 (3). The Hon'ble court has held that - " A tenant or a sub-tenant in possession of a tenament in a Town Planning Scheme is a person interested within the meaning of Rule 21 (3) and (4) of the Rules.. But he must be in possession of the property on the crucial date i.e. when the Town Planning Scheme is notified in the Official Gazette. Every owner or tenant or a sub-tenant in possession on that date alone shall be entitled to a notice and opportunity ". It has further held that "Issuance of notice under sub-rule (3) and giving of sufficient opportunity under sub-rule (4) are self-evident to subserve the basic concept of just and fair procedure. Accordingly, we hold that issuance of special notice of atleast three clear days duration and giving sufficient opportunity to the person affected to putforth his views of the scheme are mandatory and non-compliance thereof vitiates the validity of the final scheme.
The same view has been reiterated by the Supreme Court in the matter of Chelaram & Sons & Ors (Supra). In the matter of Shilpa Park Co-Op.Society Ltd (Supra) the same question arose before this court. The court following the judgment of the Division Bench ( Coram : M.B.Shah J, as he then was & D.G.Karia J) in the matter of AMBABEN SHANKARBHAI SOLANKI & VS GANGARAM PARSHOTTAMDAS & ORS (Special Civil Application No. 1608/79, decided on 20th & 22nd April, 1992) observed that -" After the amendment of sub-rule (3) notice to each and every interested person is not required to be issued. The notice as provided under substituted Rule are required to be published in the newspaper, Official Gazette, at the office of the Town Planning Officer and of the Local Authority. The substance of the notice is required to be pasted in the convenient places of that locality. Non-issuance of the notice would not vitiate the proceedings of the Town Planning Officer ".
Mr. Desai has strenuously urged that the relevant date is the date of publication of the intention to make the Town Planing Scheme, and not the date on which the Town Planning Scheme is notified in the Official Gazette. He has therefor relied upon the judgments of the Hon'ble Supreme Courts in the matters of Memon Bachubhai Dawoodbhai (supra) and Municipal Corporation (supra). I am unable to agree with the contention. As reproduced hereinabove, the Supreme Court in the matter of Jashwant Singh (Supra) has in so many words held that the relevant date is the date when the Town Planning Scheme is notified in the Official Gazette. The same view is expressed by the Hon'ble Supreme Court in the above referred two judgments.
The notice dated 3rd April, 1967, (Annexure-C to the counter-affidavit) had been given to the owners of the land informing them that their lands Survey Nos. 75/A-B; 76/A-B, and 79/A-1 had been given original Plot No. 165 and in lieu thereof, under the draft scheme, the Final PlotS Nos. 180-194 were allotted to them. The said notice referred to the Original Plot No. 165, the concerned Survey Nos including the land in question and the area of the said original plot. The valuation of the said lands has also been worked out. The owners were also called upon to make suggestion as regards the reconstitution or variation, if any. The said notice is obviously the one under sub-rule (1) of Rule 21 of the Rules of 1955 and not one under sub-rule (3) of Rule 21 as has been contended by Mr. Shelat.
7-8-2001 At the same time, it can not be said that the notice dated 15th March, 1977 (Annexure-D to the counter-affidavit) was the notice issued to the owner under Rule 21 (3) of the Rules. Evidently, it is a communication issued under Rule 21 (9) of the Rules. Hence, it is required to be held that the `special notice' as envisaged under Rule 21 (3) of the Rules was issued upon the owner of the land in question on 9th April, 1974 [copy not placed on the record] as admitted by Mr. Chhaya. Thus, it can safely be held that the Town Planning Officer started dealing in detail with the land in question in the month of April 1974 or there before i.e. before 13th May, 1974, the date on which the aforesaid sub-rule (3) was substituted. If that be so, the respondents can not seek support from the judgment of this court delivered in the matter of Ambaben Shankarbhai (supra) or from the judgment in the matter of Shilpa Park Co.Op.Society (supra). As held by the Hon'ble Supreme Court in the matter of Jaswant Singh Mathurasingh (supra), the `special notice' as envisaged in Rule 21 (3) of the Rules as it stood before its substitution on 13th May, 1974, is a mandatory requirement and such notice is required to be given to the tenant/sub-tenant in occupation as well as the owner. Further, such notice is required to be given to the tenant/sub-tenant provided he was in possession of the property on the crucial date i.e. when the Town Planning Scheme was notified in the Official Gazette i.e. 29th November, 1965 in the present case. In other words, the Town Planning Officer was required to give notice to those of the petitioners who were in possession of the parcel of the land in question on 29th November, 1965, along with the owner of the land.
The question that remains to be answered is whether any of the present petitioners was in possession of the respective piece of land as on 29th November, 1965. If any of the petitioners is proved to have been in possession of the respective piece of land since 29th November, 1965, he was entitled to a 'special notice' as envisaged in sub-rule (3) of Rule 21 of the Rules as it stood prior to 13th May, 1974. Failure to give such notice shall vitiate the Town Planning Scheme to the extent it injuriously affects such petitioners. As far as the petitioners in the Special Civil Application No. 8247/99 are concerned, they are the heirs and successor-in-possession of one Daudlal Dobhi. The said petitioners have along with the rejoinder produced rent receipts for the period prior to the date when the said TPS-23 was notified in the Official Gazette i.e. 29th November, 1965. The said rent receipts are of the years 1961, 1963 and of subsequent years. Hence, in my view, the predecessor of the petitioners i.e. Daudlal Dhobi was in possession of the respective piece of land since the year 1961 and was required to be given a 'special notice' as envisaged under Rule 21 (3) of the Rules as held by the Hon'ble Supreme Court in the matter of Jashwant Singh (supra). Admittedly, no notice as aforesaid was given to the said Daudlal Dhobi. The impugned Town Planning Scheme, therefore, so far as it injuriously affects the said petitioners, stands vitiated. In the circumstances, it is directed that the respondent-Municipal Corporation shall provide the said petitioners an alternative premises within the city and to put them in possession thereof. Until such premises is allotted and the possession is handed over, the said petitioners be allowed to occupy the piece of land in question. In the event the said petitioners do not vacate or create any obstruction in handing over the possession even thereafter, it would be open for the respondent-Municipal Corporation to evict the said petitioners summarily. In view of the above relief granted to the said petitioners, no interference with the impugned Town Planning Scheme is warranted.
So far as the petitioners in Special Civil Application No. 8419/99 are concerned, be it noted that that they are 23 individuals in occupation of different parcels of land of the land in question. All of them are carrying on business on the respective parcels of land. In the petition, a statement is made that the petitioners are in occupation of the respective parcels of land for some 35 years. However, the statement is not supported by documentary evidence. A bare statement of the nature shall not entitle the petitioners the reliefs prayed for. The documents annexed to the petition and the affidavit in rejoinder suggest the presence of some of the petitioners on the land in question after 1970. Most of the documents are of recent years i.e. the years 1997 to 1999-2000. Rest of the documents mainly are receipts of the taxes paid to the Municipal Corporation or the registration under the Bombay Shops and Establishment Act. Neither of the said documents support that any of the petitioners was in possession of the respective piece of land prior to the year 1970. In my view, therefore, the petitioners have failed to prove that any of them was in occupation/possession of the concerned piece of land on 29th November, 1965 i.e. the date of the publication of the Town Planning Scheme in the Official Gazette. Neither of the petitioners, therefore, was entitled to be given a `special notice' as envisaged under sub-rule (3) of Rules 21 of the Rules as it stood prior to 13th May, 1974. The impugned Town Planning Scheme, therefore, can not be vitiated for want of such notice.
In view of the above discussion, the Special Civil Application No. 8247/99 is allowed to the extent the relief granted to the petitioners therein. Rule is made absolute accordingly. The parties shall bear their own costs.
Special Civil Application No. 8419/99 is dismissed. Rule is discharged. There shall be no order as to costs. The Registry shall maintain a copy of this judgment in each of these petitions.
[Ms. R.M Doshit, J.] JOSHI