NAVINBHAI RAMUBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction to declare that the reservation (P-53) for Water Distribution Center of Surat Municipal Corporation continued in the Final Plot No. 63 allotted to the petitioner in the Town Planning Scheme No.37 (Althan-South) (Surat) is illegal and to quash and set aside the same. In the alternative it is prayed to direct the respondents to allot an alternative Final Plot in the Town Planning Scheme No.37 (Althan-South) (Surat) at any other location in the said Scheme. It is further prayed to quash and set aside Town Planning Scheme No.37 (Althan-South) (Surat) to the extent that the same continues the reservation (P-53) for Water Distribution Center of Surat Municipal Corporation in the Final Plot No. 63 allotted to the petitioner. It is further prayed to quash and set aside the Resolution No.1456/07 passed by the Standing Committee of the respondent No.5 ? Municipal Corporation of the City of Surat for acquiring the lands bearing Block No.221/2 of village Althan, Taluka : Choryasi, District : Surat, of the petitioner.

(2.) THAT the father of the petitioner - Ramubhai Naranbhai Patel was the owner of the land bearing Block Nos.221/1 and 221/2 of Village Althan, Taluka : Choryasi, District : Surat, who expired on 16/6/2004. On the death of the said Ramubhjai, the petitioner has inherited the said land as his heirs. THAT in the Development Plan of Surat Urban Development Authority (hereinafter referred to as ?SUDA? for short), sanctioned in the year 997, the land bearing Block No.221/2 was kept under reservation under the provisions of the Gujarat Town Planning and Urban Development Act (hereinafter referred to as ?Town Planning Act? for short), by designation (P-53) for Water Distribution Center of the Surat Municipal Corporation. Even under the Revised Development Plan of SUDA, which came to be sanctioned on 2/9/2004, the land in question continued to be under reservation for Water Distribution Center of the Surat Municipal Corporation (P-53). The aforesaid land is also included in the Town Planning Scheme No.37 (Althan-South) (Surat) and as per the Draft Town Planning Scheme sanctioned by the State on 21/1/2000, the land bearing Block No.221/1 was given Original Plot No.60/A admeasuring 4047 sq.mtrs. and it was proposed to allot Final Plot No. 60/A admeasuring 2832 sq.mtrs. THAT under the aforesaid Draft Town Planning Scheme, Block No.221/2 was given Original Plot No.60/B admeasuring 1619 sq.mtrs. and in lieu of that, it was proposed to allot Final Plot No. 60/B admeasuring 1150 sq.mtrs. THAT under the aforesaid Town Planning Scheme No.37 (Althan-South) (Surat), reservation of Water Distribution Center for Surat Municipal Corporation (P-53) was proposed to be continued in Final Plot No.60/B. It appears that thereafter Town Planning Officer prepared Town Planning Scheme No.37 and published Notification dtd. 9/1/2006 in local newspapers. It is the case on behalf of the petitioner that Town Planning Officer by his statement dtd.30/1/2006 informed the said Ramubhai regarding status of the land bearing Block Nos.221/1 and 221/2 with regard to Town Planning Scheme No.37 and he informed that Block No.221/1 has been given Original Plot No.60/A admeasuring 4047 sq.mtrs. and in lieu of that Final Plot No.60 admeasuring 2897 sq.mtrs. has been allotted. He was further informed that so far as land bearing Block No.221/2 is concerned, the same was given Original Plot No.60/B admeasuring 1619 sq.mtrs. and in lieu of that Final Plot No.63 admeasuring 1138 sq.mtrs. has been allotted. In the said statement, it was also indicated that reservation (P-53) for Water Distribution Center of Surat Municipal Corporation in the Revised Development Plan of SUDA with respect to Original Plot No.60/B has been continued in the allotted Final Plot No.63. THAT thereafter Preliminary Town Planning Scheme has been sanctioned by the State Government under section 65 of the Town Planning Act on 13/10/2006. It is the case on behalf of the petitioner that thereafter petitioner-trust addressed various communications/letters to various authorities under the Town Planning Act objecting to the continuation of reservation in the Final Plot No.63 and/or to allot him clear Final Plot in the Preliminary Town Planning Scheme without any reservation thereon. However, neither the land in question is de-reserved nor the petitioner has been allotted any other plot and hence the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs.

(3.) HEARD the learned advocates appearing on behalf of the respective parties at length. 5.01. At the outset, it is required to be noted that in the present petition, the petitioner has, as such challenged the action of the respondents in continuing the Reservation (P-53) for Water Distribution Center for Surat Municipal Corporation in the Final Plot No. 63 allotted to the petitioner in the Town Planning Scheme No.37 (Althan-South) (Surat) and in the alternative it is prayed to direct the respondents to allot an alternative Final Plot in the Town Planning Scheme No.37 (Althan-South) (Surat) at any other location in the said Scheme without any reservation. 5.02. It is to be noted that the petitioner is owner of land bearing Block No.221/1 admeasuring 4047 sq.mtrs. and land bearing Block No.221/2 admeasuring 1619 sq.mtrs. It appears that land bearing Block Nos.225/P, 226/P, 227/P, 229, 221/2, 223/2 and 228/P, admeasuring 19,980 sq.mtrs. were reserved in the Revised Development Plan of SUDA which is sanctioned by the State Government vide Notification dtd.2/9/2004 for Water Distribution Center for Surat Municipal Corporation. Thus, land bearing Block No.221/2 is also reserved in the Revised Development Plan of SUDA for Water Distribution Center for Surat Municipal Corporation. It is to be noted that the said Revised Development Plan of SUDA which has been sanctioned by the State Government vide notification dtd.2/9/2004 has not been challenged by the petitioner and the same has attained finality. Therefore, under the Revised Development Plan, the land bearing Block No.221/2 has been continued under the reservation for Water Distribution Center for Surat Municipal Corporation. Considering the same, the aforesaid land in question is required to be acquired by the State Government / Surat Municipal Corporation, which is needed for Water Distribution Center either under section 77 or under section 78 of the BPMC Act. Land needed by local authority for the purpose can be acquired either under section 77 of the BPMC Act by private negotiation and/or under section 78 of the BPMC Act to acquire the land under the provisions of the Land Acquisition Act. In the present case, so far as land bearing Block Nos.225/P, 226/P, 227/P and 229 have already been acquired / purchased by the Corporation by way of negotiations from their owners. It appears that said Block Numbers were admeasuring 16,255 sq.mtrs. However, in view of the Town Planning Scheme No. 37, Corporation has got possession of only 12,908 sq.mtrs. since some of the portion of the aforesaid land is already deducted for other public purpose. It appears that as regards the remaining land, the land could not be purchased by way of negotiations under section 77 of the BPMC Act and therefore, Corporation has passed Resolution No.1456/2007 and has decided to acquire the land bearing Block Nos.221/2, 223/2 and 228/P of Mouje Althan admeasuring 7835 sq.mtrs. by way of acquisition under the Land Acquisition Act (under section 78 of the BPMC Act). It appears that land bearing Block No.221/2 is covered under the Town Planning Scheme No. 37 (Althan-South) (Surat) and land bearing Block No.221/2 admeasuring 1619 sq.mtrs. has given Original Plot No.60/B under the Preliminary Town Planning Scheme and in lieu of that Final Plot No. 63 admeasuring 1138 sq.mtrs. has been allotted to the owners and in view of the Revised Development Plan, land bearing Block Nos.221/2 has been continued in under the Reservation for Water Distribution Center for Surat Municipal Corporation (P-53). As regards Final Plot No. 63, reservation in the Original Plot No.60/B has been transferred to Final Plot No. 63. Therefore, as such, no illegality has been committed by the authorities in continuing the reservation for Water Distribution Center for Surat Municipal Corporation (P-53) on the land bearing Final Plot No. 63. The said action is neither illegal nor contrary to the provisions of the Act. As stated above, Revised Development Plan has been sanctioned by the State Government under section 19 of the Act which has not been challenged by the petitioner. Therefore, reservation on the land bearing Block No. 221 for Water Distribution Center for Surat Municipal Corporation stands and it is continued. The contention on behalf of the petitioner relying upon the decision of the Honourable Supreme Court in the case of Shantilal Mangaldas and Others (Supra) (Para 54) that once land in question is included in the Town Planning Scheme and once Draft Town Planning Scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Scheme and the land required for any other purposes of the Town Planning Scheme cannot be acquired otherwise than under the Town Planning Act, is based on misinterpretation and/or misreading of the decision of the Honourable Supreme Court. There is no such proposition of law laid down by the Honourable Supreme Court in the said decision as sought to be contended on behalf of the petitioner. In the case before the Honourable Supreme Court it was contended on behalf of the land owner that it is always open to the State Government to acquire the lands for a public purpose of a local authority and after acquiring the lands to vest them in the local authority and if that be done, compensation will be payable under the Land Acquisition Act 1894, however, when the land is acquired for public purpose of a local authority under the provisions of the Bombay Town Planning Act, compensation which is payable is determined at a rate prevailing many years before the date on which the notification under section 4 of the Land Acquisition Act is issued and to that, the Honourable Supreme Court has observed and held that method of determining compensation with respect of lands which are subject to the Town Planning Scheme is prescribed in the Town Planning Act and there is no option under that Act to acquire the land either under the Land Acquisition Act or under the Town Planning Act. By holding so, the Honourable Supreme Court has observed that once the Draft Town Planning Scheme is sanctioned, the land becomes subject to the provisions of the Town Planning Act, and on the final Town Planning Scheme being sanctioned, by statutory operation, the title of the various owners is re-adjusted and the lands needed for a public purpose vest in the local authority. 5.03. In the present case, as stated hereinabove, the land in question continued to be under the reservation for Water Distribution Center for Surat Municipal Corporation (P-53) under the Revised Development Plan and in the meantime the land in question being included in the Town Planning Scheme No. 37 (Althan-South) (Surat), the said reservation in the Final Plot No. 63 which has been allotted against the Block No.221/2, Original Plot No.40/B has been continued and therefore, as such, there is no inconsistency between the Town Planning Scheme and the Development Plan. It is to be noted that even the Town Planning Scheme is required to be made in consonance with the Development Plan. Once the land in question is reserved under the Revised Development Plan for Water Distribution Center for Surat Municipal Corporation, the same is required to be acquired for which the petitioner shall be paid compensation. Therefore, the prayer of the petitioner to even allot alternative Final Plot in the Preliminary Town Planning Scheme without any reservation, also cannot be granted. 5.04. Now, so far as the next submission on behalf of the petitioner that with respect to statutory acquisition relying upon Sec.48A of the Town Planning Act has also no substance. Sec.48A of the Town Planning Act permits any appropriate authority to take possession of the land which is needed for public purpose specified in Clauses (c), (f), (g) or (h) of Sub-section 3 of Section 40 even at the stage of Draft Town Planning Scheme and even at the stage of Draft Town Planning Scheme whenever the land is needed for the aforesaid purpose, the same shall vest in the appropriate authority free from all encumbrances, at that stage, as otherwise so far as other lands are concerned and lands needed for other purposes are concerned, the same vest only after preliminary Town Planning Scheme is sanctioned. Therefore, contention on behalf of the petitioner that having failed to acquire the land required for Water Distribution Center under the Town Planning Scheme by statutory vesting under section 48A of the Town Planning Act neither Surat Municipal Corporation nor State Government nor any other authority can acquire the land under the provisions of the Land Acquisition Act for Water Distribution Center under the guise of reservation under the Development Plan cannot be accepted. 5.05. Now so far as the contention on behalf of the petitioner that the land in question bearing Final Plot No.63 of the petitioner admeasuring 1138 sq.mtrs. is not required to be acquired as the reservation and proposed acquisition of the land of the petitioner is in excess of requirement of Surat Municipal Corporation is concerned, the same has also no substance. It is to be noted that as such under the Revised Development Plan the land admeasuring 19,980 sq.mtrs. was reserved for Water Distribution Center for Surat Municipal Corporation, out of land bearing Block Nos.225/P, 226/P, 227/P, 229, 221/2, 223/2 and 228/P, out of land bearing Block Nos.225/P, 226/P, 227/P and 229 have been purchased/acquired by the Surat Municipal Corporation by way of negotiations from their owners under section 77 of the BPMC Act. It appears that Block Nos.225/P, 226/P, 227/P and 229 were admeasuring 16,255 sq.mtrs., however, in view of the Town Planning Scheme , Surat Municipal Corporation could get possession of 12908 sq.mtrs. only, since some of the portion of the said lands came to be already deducted for other public purposes and, therefore, Surat Municipal Corporation is still in need of 7972 sq.mtrs. of land. 5.06. Now so far as contention on behalf of the petitioner with respect to Final Plot No.124 admeasuring 5330 sq.mtrs. is concerned, it is to be noted that on the land bearing Final Plot No.124 there is existing Water Distribution Center and while in P-53 Final Plot No.124 is not covered and in P-53 reservation is made for additional land. Therefore, it appears that reservation for Water Distribution Center for Surat Municipal Corporation for admeasuring 19,980 sq.mtrs. in revised development plan was for additional land other than land bearing Final Plot No.124 admeasuring 5330 sq.mtrs.. Even from the map, it appears that land bearing Final Plot No.63 admeasuring 1138 sq.mtrs. is just adjacent to the land, which is acquired/purchased by the Surat Municipal Corporation for Water Distribution Center and is also adjacent to the existing Water Distribution Center which is on Final Plot No.124. Therefore, contention on behalf of the petitioner that the land in question is not needed for Water Distribution Center, has no substance and cannot be accepted. 5.07. Now so far as contention on behalf of the petitioner that the reservation in the Town Planning Scheme in the Final Plot No.63 is discriminatory as with respect to other lands which were to be put under reservation in the development plan while preparing Town Planning Scheme said reservation has been removed and the owners have been allotted clear Final Plots are concerned, it is to be noted that it depends upon the location and re-distribution of the plots. It might happen that on re-distribution of the plots while preparing Town Planning Scheme, location may change and reservation may continue on the Final Plot but on the same Original Plot / Survey Number/Block Number. Even otherwise as stated above, considering the map land bearing Final Plot No.63 which is arising out of Block No.221/2 ? Original Plot No.40/B is just adjacent to other lands reserved and purchased by the Surat Municipal Corporation for Water Distribution Center and, therefore, action of the respondents in continuing the reservation over Final Plot No.63 for Water Distribution Center of Surat Municipal Corporation cannot be said to be illegal and/or discriminatory and/or violative of Article 14 of the Constitution of India. 5.08. Now, so far as the alternative prayer of the petitioner to direct the respondents to allot alternative another Final Plot to the petitioner without any reservation is concerned, the same cannot be accepted and granted. The land in question is under reservation for Water Distribution Center for Surat Municipal Corporation under the Revised Development Plan as well as under the Town Planning Scheme which has been sanctioned by the State Government and therefore, the land in question is indeed required to be acquired by the Surat Municipal Corporation either under section 77 of the BPMC Act or under section 78 of the BPMC Act. It appears that negotiation under section 77 of the BPMC Act have failed and therefore, the land will be acquired under section 78 of the BPMC Act which is needed for public purpose by Surat Municipal Corporation and the petitioner shall be paid compensation. Except the aforesaid there is no such provision in the Town Planning Act to allot clear Final Plot without any reservation when the original land and Final Plot is put under reservation. Under the circumstances, no such relief can be granted.