IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 464 of 2011 In SPECIAL CIVIL APPLICATION NO. 12379 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== DR PRAFUL NANUBHAI THAKER & 236 OTHERS Versus STATE OF GUJARAT & 3 OTHERS ========================================== =============== Appearance:
MR KG VAKHARIA, SR. ADVOCATE with MR MK VAKHARIA, ADVOCATE for the Appellants.
MS KRINA CALLA, ASST. GOVT. PLEADER for the Respondents No. 1 - 3 MR HIMANSHU K PATEL, ADVOCATE for the Respondent No. 2 MR PRASHANT DESAI, SR. ADVOCATE with MR KAUSHAL D PANDYA, ADVOCATE for the Respondent No. 4 CORAM: HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 28/12/2012 CAV JUDGEMENT (PER : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This Letters Patent Appeal is at the instance of the unsuccessful applicants, 237 in number, of Special Civil Application No. 12379 of 2009 and is directed against an order dated 19th November 2010 passed by a learned Single Judge of this Court by which His Lordship dismissed the said Special Civil Application.
2. In the said Special Civil Application, the appellants prayed for the following main relief:
“8) The Petitioners therefore, pray that:-
A) Your Lordships may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the Draft Town Planning Scheme No.65 of Saijpur-Bogha;
B) A writ of mandamus, a writ in the nature of mandamus or any other writ, order or direction directing the respondent authorities to modify the Draft Town Planning Scheme No.65 of Saijpur-Bogha, so that the residences of the petitioners who are members of Indrajeet Park Co. Op. Housing Society Ltd. are not required to be demolished as the construction of the Indrajeet Park Co. Op. Housing Society is in accordance with the permission granted by the District Panchayat;”
3. The case made out by the appellants in the said Special Civil Application may be summed up thus:
3.1 The appellants are the residents of Indrajeet Park Co. Op.
Housing Society [the Society, hereafter]. The Society was registered on 31st August 1981 under the provisions of the Gujarat Co-Operative Societies Act and the same is situated on Final Plots No. 1092 to 1141 and 1083 to 1093 of Mahavirnagar which is on Survey Nos. 205, 247, 261 to 270 of Saijpur-Bogha.
3.2 The Society is permitted by the Competent Authority and Additional Collector, Ahmedabad, by his order dated 26th October 1979 under section 21 of the Gujarat Land Ceiling Act to construct residential houses for weaker section and the District Panchayat had approved the plans submitted by the Society and granted permission to the Society to construct the residential houses on 22nd August 1982. The construction was carried out in accordance with the sanctioned plan and the appellants are residing in the said Society since 1984-85, even prior to the said area being merged into the limits of the Ahmedabad Municipal Corporation [the AMC, hereafter].
3.3 The area in question, i.e. Saijpur-Bogha was merged into the territorial limits of the AMC sometime in the year 1988-89 and prior to the area being included in the limits of the AMC, all permissions for passing the plan, putting up construction etc. were sanctioned by the District Panchayat.
3.4 A proposal for Town Plan Scheme No. 65 of Saijpur-Bogha was given pursuant to which the internal roads of the Society were proposed to be widened by 9 meters. The appellants, therefore, filed their objections on 20th April 2006 by which they objected to the widening of the internal roads of the Society since it would result into their houses being demolished. The appellants had also objected to the proposed TP Scheme No. 65 as a whole.
3.5 Without considering the objections of the Society, the AMC published Draft Scheme under section 42 of the Gujarat Town Planning and Urban Development Act, 1976 [Town Planning Act, hereafter] in daily newspaper “Gujarat Samachar”, Ahmedabad Edition, on 24th July 2006. By the said advertisement, written objections were called for from the persons who are affected by the Draft Plan within one month from the date of publication of the Draft Scheme in the Official Gazette of the State Government.
3.6 Pursuant to the said advertisement, the appellants filed their objections on 18th August 2006 objecting to the widening of the internal roads of the Society as well as to the taking of the land of the Society for expansion of the road at the cost of demolition of the houses of the appellants. The appellants also objected that correct facts were not shown in the Draft Saijpur-Bogha TP Scheme No. 65.
3.7 The Society of the appellants falls in the Draft Saijpur-Bogha TP Scheme No. 65 and across the road, there is Nikol-Rakhial TP Scheme No.1 and there are shopping complex and shops therein, which are just opposite to the Society. The shop-owners in the said Nikol- Rakhial TP Scheme No.1 have encroached upon 15 ft. margin provided to the said shops as well as the road and because of the said encroachments, the alignment of the 80 ft. road has been moved towards the Society of the appellants with the resultant effect that while implementing Saijpur-Bogha TP Scheme No. 65, the houses of some of the appellants are required to be fully demolished and those of some other members are required to be partially demolished.
3.8 Keeping in view the aforesaid fact that several houses which are legally constructed will be demolished and the people will be put in great hardship, the Town Planning Committee of the AMC had passed a resolution to vary the Nikol-Rakhial TP Scheme No.1, which was also accepted unanimously by the General Board of the AMC.
3.9 In spite of the fact that the Nikol-Rakhial TP Scheme No.1 was varied by the Town Planning Committee and the elected members of the General Board of the AMC unanimously, the the Nikol-Rakhial TP Scheme No.1 was finalized by the respondents.
3.10 The State Government appointed a Town Planning Officer for finalizing the Draft Saijpur-Bogha TP Scheme No. 65 and under Rule 26 of the Gujarat Town Planning Rules, [the Rules, hereafter]. The Town Planning Officer issued advertisement dated 18th October 2009 in the daily newspaper, Gujarat Samachar, by which the Town Planning Officer invited objections from the persons affected by Saijpur-Bogha TP Scheme No. 65.
3.11 The appellants apprehended demolition of their premises and therefore, filed the Special Civil Application out of which the present LPA arises.
4. The said Special Civil Application was opposed by the AMC, and their objections may be summarized thus:
4.1 Ahmedabad Urban Development Authority [AUDA, hereafter] declared its intention to make Nikol-Rakhial TP Scheme No.1 after having consultation with the Chief Town Planner as provided under section 41 of the Town Planning Act. The said consultation was made on 26th February 1985 and the area of the Scheme was already notified as back as in 1985 and the said draft Scheme was sanctioned on 2nd January 1987. The preliminary Scheme was sanctioned on 16th March 1996 and the final Scheme was sanctioned on 15th September 1998.
4.2 The area of Nikol-Rakhial TP Scheme No.1 came within the limits of the AMC in the year 1986. However, for Saijpur-Bogha area, which was within AUDA limits, no TP Scheme was proposed or made. The said Saijpur-Bogha area also came within the limits of AMC in the year 1986 and since there was no TP Scheme, on 26th July 2005, the AMC declared its intention to make TP Scheme under section 41(1) of the Town Planning Act. The said declaration was published in the official gazette under section 41(2) of the Town Planning Act and rule 16(1) of the Rules on 16th August 2005. The declaration of intention was also published in the daily news papers on 17th August 2005. Ultimately, the notice under Rule 17 of the Rules for owners’ meeting were published in the local news papers “Sandesh” and “Jansatta” on 14th April 2006 and the owners’ meeting was accordingly held on 17th April 2006.
4.3 The Draft Scheme was published on 22nd July 2006 in the Government Gazette under section 42(1) of the Act read with Rule 18 of the Rules calling upon objections and suggestion from the persons interested and the said draft scheme was also published in daily newspapers on 24th July 2006, calling for objections and suggestions.
After receiving the objections and suggestions, the Draft Scheme was submitted before the State Government on 19th October 2006. The Draft Scheme was sanctioned by the State Government on 11th June 2009.
4.4 Saijpur-Bogha TP Scheme No. 65 is touching the boundary of Nikol-Rakhial TP Scheme No.1. Just after the boundary of Nikol- Rakhial TP Scheme No.1 is completed, a road of 24 meters is provided in the development plan which was taken as TP Scheme road of 24 meters in the Draft Saijpur-Bogha TP Scheme No. 65. The Development Plan in which this 24 meters road was provided, was sanctioned on 18th May 2002, much after the Nikol-Rakhial TP Scheme No.1 was sanctioned as preliminary scheme and final scheme [2nd January 1987 and 16th March 1996 respectively].
4.5 Before the AMC decided to publish the declaration of intention under section 41(1) in respect of Saijpur-Bogha TP Scheme No. 65, the Town Planning Committee passed a resolution dated 11th January 2005 to propose variation in the development plan by revising the road. However, the effect of the said resolution was to change the boundary of TP Scheme and the AMC was required to pay huge amount as incremental contribution. The AMC, therefore requested the State Government on 11th October 2006 to suspend the resolution dated 11th January 2005.
4.6 After the aforesaid letter was written, the Draft Saijpur-Bogha TP Scheme No. 65 was sanctioned on 11th June 2009 under section 48(2) by the State Government wherein the road was kept as it is and the boundary of the TP Scheme was also kept as it is.
4.7 The Scheme having been sanctioned by the State Government, the AMC will now have to take possession for making the road under section 48(A) of the Town Planning Act after following the necessary procedure. Saijpur-Bogha area touching the Nikol-Rakhial area is a very busy area having very heavy traffic and the road of 24 meters is extremely needed.
4.8 In view of the fact that the Draft Saijpur-Bogha TP Scheme No.
65 is already sanctioned by the State Government and the boundary of Nikol-Rakhial TP Scheme No.1 cannot be changed, according to the AMC, the question of granting any relief as prayed for by the appellants in the writ-application did not arise. The entire area is thickly populated and roads are needed in the public interest, and vis- a-vis private interest, public interest should prevail.
4.9 The appellants filed an affidavit-in-rejoinder thereby reiterating their stance made in the writ-application. It was further contended that it was incumbent upon the State Government to consider the variation of the final development plan as contemplated under section 19 of the Town Planning Act before sanctioning the Draft Saijpur-Bogha TP Scheme No. 65 in accordance with the notification dated 11th May 2009. By not doing so, the notification sanctioning the Draft Saijpur-Bogha TP Scheme No. 65 under section 48(2) of the Town Planning Act is violative of the provisions of the Town Planning Act as well as Articles 14, 19 and 21 of the Constitution of India.
4.10 It was further contended in the affidavit-in-rejoinder that it was incumbent upon the State Government to give personal hearing to the persons who had filed objections against the proposed Draft Saijpur-Bogha TP Scheme No. 65. It was also contended that the boundary of Nikol-Rakhial TP Scheme No.1 was also required to be varied as per the resolution at Annexure RI as the said resolution indicates that because of Nikol-Rakhial TP Scheme No.1, margin of 10 to 15 ft. is available on the right hand side of the road as against the situation comparing to destruction of legally constructed residential houses and existing shops on the left hand side of the road, and as such, it was incumbent upon the State Government to consider the question regarding variation of Nikol-Rakhial TP Scheme No.1 as well as Draft Saijpur-Bogha TP Scheme No. 65. It was further contended in the affidavit-in-rejoinder that the total loss on account of destruction of the houses of the appellants will be approximately Rs.2.50 Crores apart from the fact that the damage that would be caused to the owners of the houses will be irreversible inasmuch as it will not be possible for the economically weaker and lower middle class people to get cheaper housing accommodation in the City of Ahmedabad.
4.11 As indicated earlier, the learned Single Judge, by the order impugned in this appeal, has dismissed the said writ-application.
5. Being dissatisfied, the appellants -petitioners of the writ- application- have come up with the present Letters Patent Appeal.
6. After hearing Mr. Vakharia, the learned Senior Advocate on behalf of the appellants, Mr. Desai, the learned Senior Advocate appearing on behalf of the respondent No.4 - the AMC, Ms. Krina Calla, the learned Assistant Government Pleader for the State and Mr. Himanshu Patel, the learned advocate appearing on behalf of the respondent No.2, we find that the grievance of the writ-petitioners is only as regards widening of internal roads of the Society to 7.5 Mtrs. as a result of which many houses of the writ-petitioners in the Society will be demolished. It appears from the record that so far as Nikol- Rakhial TP Scheme No.1 is concerned, the same was notified as back as in the year 1985. Draft Scheme was sanctioned on 2nd January 1987, preliminary Scheme on 16th March 1996, and, the final Scheme on 15th September 1998. So far as Saijpur-Bogha area was concerned, the same was within AUDA limits and no TP Scheme was proposed or made. The said Saijpur-Bogha area also came within the limits of AMC in the year 1986 and since there was no TP Scheme, on 26th July 2005, the AMC declared its intention to make TP Scheme under section 41(1) of the Town Planning Act. The said declaration was published in the official gazette under section 41(2) of the Town Planning Act and rule 16(1) of the Rules on 16th August 2005. The declaration of intention was also published in the daily news papers on 17th August 2005 and ultimately, the notice under Rule 17 of the Rules for owners’ meeting were published in the local news papers on 14th April 2006. The Draft Scheme was published on 22nd July 2006 in the Government Gazette under section 42(1) of the Act read with Rule 18 of the Rules calling upon objections and suggestion from the persons interested and the said draft scheme was also published in daily newspapers on 24th July 2006, calling for objections and suggestions. It further appears that after receipt of objections and suggestions, the Draft Scheme was submitted before the State Government on 19th October 2006 and the Government sanctioned the Draft Scheme on 11th June 2009. We further find that just after the boundary of Nikol-Rakhial TP Scheme No.1 is completed, a road of 24 meters is provided in the Development Plan which was taken as TP Scheme road of 24 meters in the Draft Saijpur-Bogha TP Scheme No.
65 and such Development Plan in which this 24 meters road was provided, was sanctioned on 18th May 2002, much after the Nikol- Rakhial TP Scheme No.1 was sanctioned. There is no dispute that the Town Planning Committee passed a resolution dated 11th January 2005 to propose variation in the development plan by revising the road. However, if the said resolution was implemented, the effect was to change the boundary of TP Scheme whereby the AMC was required to pay a huge amount as incremental contribution.
Therefore, the AMC itself requested the State Government on 11th October 2006 to suspend the resolution dated 11th January 2005 and the Government sanctioned the Scheme accordingly.
7. From the above fact, it is apparent that the Scheme has been framed after complying with all the formalities required under law, and if the appropriate authority is of the view that having regard to the heavy traffic and the fact that road of 24 metres wide was extremely necessary by taking into consideration public interest, this Court should not interfere simply because some of the buildings of the petitioners will be partly or fully demolished.
8. We have already pointed that from the above facts that we do not find any irregularity which has vitiated the framing of the TP Scheme, and thus, there is no scope of interference with the said Scheme at this stage on the ground that there will be demolition, either in full or in part, of some of the houses of the petitioners who are coming from economically weaker section of the Society or lower- middle class people.
9. On consideration of the entire materials on record, we find that the learned Single Judge has, after taking into consideration the entire aspects, rightly dismissed the writ-application. This appeal is, thus, devoid of any substance and is hereby dismissed. The stay granted by this Court, vide order passed on 11th March 2011, stands vacated forthwith and the respondents will be at liberty to take further action pursuant to the notice issued to the petitioners impugned in the writ-application. In the facts and circumstances, there will be, however, no order as to costs.
(BHASKAR BHATTACHARYA, CJ) (J.B.PARDIWALA, J.) FURTHER ORDER:
After this order is passed, the learned advocate appearing on behalf of the appellants prays for stay of operation of our order.
In view of what has been stated above, we find no reason to stay our order.
(BHASKAR BHATTACHARYA, CJ) (J.B.PARDIWALA, J.) mathew