KISHANBHAI HARGOVANDAS PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for appropriate writ, order and/or directions quashing and setting aside the modification in the Preliminary Town Planning Scheme No.6 (Unja) QUA Original Plot No.207 - Final Plot Nos.107, 224, 227 and 229, made by the respondents - State of Gujarat while exercising its powers as contemplated under sec.65(1)(a) and (b) read with sec.52(2) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act" for short), with all consequential and incidental effects and to direct the respondents to vary the aforesaid Preliminary Town Planning Scheme No.6 (Unja) accordingly.

(2.) FACTS leading to the present Special Civil Application and the chronological events in nutshell are as under: -

(3.) THAT the petitioners are the owners of the land bearing Survey No.296 admeasuring 4876 sq.mtrs. situated at Unja, District Mehsana. That Unja Area Development Authority (hereinafter referred to as "the UADA" for short) declared its intention to make a Town Planning Scheme under sec.42(1) of the Act on 2/5 -11 -1993 and the aforesaid land in question was brought within the area of proposed Town Planning Scheme. That thereafter, as per the provisions of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as "the Rules" for short), the intention was published in the local newspaper "Jansatta" by a public notice on 7/4/1995, whereby it was informed that the owners' meeting is going to be convened on 15/4/1995. That thereafter the appropriate authority made Preliminary Town Planning Scheme No.6 (Unja) and published the same in the local newspaper "Jansatta" on 24/4/1995, whereby invited objections and suggestions with respect to Draft Town Planning Scheme No.6 (Unja) as per sec.42(1) of the Act. That the same was also published in the Government Official Gazette on 27/4/1995. After taking into consideration the objections and suggestions received by the area development authority, it had submitted the said Draft Town Planning Scheme to the State Government for sanction under sec.48 of the Act on 24/8/1995. That the State Government (Urban Housing and Urban Development Department) in exercise of its powers under sec.48 of the Act sanctioned the said Town Planning Scheme No.6 (Unja) vide notification dtd.9/6/1999. That as per the sanctioned Draft Town Planning Scheme, Original Survey No.296 owned by the petitioners was given Original Plot No.207 admeasuring 4876 sq.mtrs. against which it was proposed to allot Final Plot No. 207 admeasuring 3900 sq.mtrs., the proposed deduction at the relevant time was 20%. That after the Draft Town Planning Scheme came to be sanctioned by the State Government under sec.48 of the Act, the State Government appointed Town Planning Officer on 21/8/1999 for finalisation of the Draft Town Planning Scheme in exercise of its powers under sec.50(1) of the Act. That the Town Planning Officer issued notices upon the petitioners - land owners inviting objections and suggestions on the sanctioned Draft Town Planning Scheme on 21/3/2000. It appears that in response to the aforesaid notice, no objections and/or suggestions were submitted to the Town Planning Officer on behalf of the land owners to the aforesaid proposal with respect to Survey No.269 - Original Plot No.207. That thereafter the Town Planning Officer vide its letter dtd.6/5/2003 to the UADA, forwarded the tentative reconstitution plan, showing the proposed Town Planning Road and Final Plots allotted to UADA for their further objections and suggestions. It appears that no objections and suggestions were received from UADA. Thereafter the UADA vide its Town Planning Committee vide its resolution dtd.6/8/2000 and General Board Resolution dtd.9/9/2003 sent its opinion to the Town Planning Officer. On the basis of the objections and suggestions received from the interested persons of the Scheme, the area and appropriate authority - the Town Planning Officer prepared tentative reconstitution plan of the Town Planning Scheme No. 6. It is to be noted that as per the tentative reconstitution plan, it was decided to allot Final Plot No. 189 area admeasuring 3875 sq.mtrs. in lieu of Original Survey No.296 - Original Plot No. 207 admeasuring 4876 (instead of Final Plot No. 207 as per the sanctioned Draft Town Planning Scheme). It is also to be noted that while reconstituting the plan and shifting the allotment of Final Plot No. 189 instead of Final Plot No. 207, compare to the Draft Scheme proposal even the location also came to be changed and Final Plot was slightly shifted to East and have lesser approach of 12 mtrs. T.P. Road from Souther Side. That as per the aforesaid tentative reconstitution plan, notice was issued to the land owners on 15/1/2004, inviting objections and suggestions. It appears that no one appeared on behalf of the owner before the Town Planning Officer on the date of hearing i.e. 23/1/2004. That thereafter the Town Planning Officer declared his decision on the Preliminary Town Planning Scheme No.6 on 9/5/2005 and prepared Preliminary Town Planning Scheme No. 6 and submitted the same to the State Government (Urban Housing and Urban Development Department) for its sanction on 21/5/2005 under the provisions of sec.64 of the Act. The decision of the Town Planning Officer (i.e. proposed Town Planning Scheme) was intimated to the land owners on 21/1/2005. It is to be noted that as per the proposed Preliminary Town Planning Scheme prepared by the Town Planning Officer which was sent to the State Government for its sanction under sec.65 of the Act which was intimated to the original land owners on 25/1/2005, instead of Final Plot No. 189 ( as per tentative reconstitution plan) it was decided by the Town Planning Officer to allot four Final Plots i.e. Final Plot Nos.107, 224, 227 and 229, total admeasuring 3876 sq.mtrs. in lieu of Original Survey No.296 - Original Plot No.207 admeasuring 4876 sq.mtrs. of land. That after the receipt of the aforesaid Preliminary Scheme framed on by the Town Planning Officer, the same came to be considered by the State Government (Urban Housing and Urban Development Department) and the said Preliminary Town Planning Scheme No. 6 (Unja) came to be sanctioned by the State Government under sec.65 of the Act with further modifications on 5/7/2007 and as per the Preliminary Town Planning Scheme No.6 (Unja) sanctioned by the State Government (Urban Housing and Urban Development Department), instead of four Final Plots i.e. Final Plot Nos.107, 224, 227 and 229 [as proposed by the Town Planning Officer while framing / preparing Preliminary Town Planning Scheme No.6 (Unja)], as per the sanctioned Preliminary Scheme sanctioned by the State Government, it was proposed to allot Final Plot No. 294 admeasuring 3890 sq.mtrs in lieu of Survey no.296 - Original Plot No.207 admeasuring 4876 sq.mtrs. and the State Government while sanctioning the Preliminary Scheme, modified the Preliminary Scheme submitted by the Town Planning Officer to the aforesaid extent i.e. by allotting only one Final Plot to the original land owners. Being aggrieved and dissatisfied with the aforesaid Preliminary Town Planning Scheme No.6 (Unja) sanctioned by the State Government and proposing to allot Final Plot No. 294 admeasuring 3890 sq.mtrs. to the original land owners i.e. petitioners in lieu of their Original Survey No.296 - Final Plot No. 207 admeasuring 4876 sq.mtrs. and modifying the Preliminary Scheme submitted by the Town Planning Officer to the aforesaid extent, the petitioners - original land owners have preferred present Special Civil Application No. under Article 226 of the Constitution of India.