ASGAR NOORMUHAMMAD KHINCHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of these two petitions filed under Art. 226 of the Constitution of India, the respective petitioners have challenged the action of the respondent authority in respect of the land bearing original Revenue Survey No.185/1,situated at Tandalja, Vadodara and since both these petitions are arising out of the very same controversy, learned advocates have jointly submitted to hear and dispose of both the petitions by common order and accordingly, for sake of convenience, Special Civil Application No.3967 of 2020 is treated as a lead matter and the facts are taken from the said petition.

(2.) The petitioners have challenged the orders/ proposal dated 7.1.2019 as well as 31.7.2019 passed by the respondent No.3 Town Planning Officer, according to the petitioners, are contrary to the Gujarat Town Planning and Urban Development Act and the Rules and contrary to the notification and the guidelines dated 12.4.2014, Final Plot No.27 admesuring 5767 Sq. Mtrs. was proposed in lieu of original Plot No.27 admeasuring 9611 Sq.Mtrs., particularly the same amounts to recall and review the earlier orders/ proposal dated 15.4.2015, 24.10.2016 and 23.6.2017, whereupon the petitioners have already developed their land and put up the construction, that too prior to issuance of the notification intended for draft Town Planning Scheme No.27 (Tandalja) covering the petitioners' land and also as per the said earlier proposal, as indicated above, and hence the petitioners are constrained to approach this Court. By referring to the respective land portion, as mentioned in para 3 of the petition, it has been indicated that this portion of the land in question was granted permission by the collector, Vadodara on 30.6.2010, to use both these portion of land for residential purpose and by way of combined permission, for both Revenue Survey Nos.185/1 and 185/2, Vadodara Municipal Corporation allowed to develop the said land as one common land and upon such decision, even letter of permission for granting one common permission for construction was issued on 4.12.2010 and permitted the construction of 10 residential units over both these portions of land which are narrated in para 3 of the petition. Even after construction at a plinth level, the petitioners started to sell the units by executing agreements to sale and said documents were also executed in the year 2012-13, details whereof are narrated in para 3.7. According to the petitioners, construction of 10 units took place in consonance with the sanctioned plan and completion report was also submitted to the respondent No.4 Vadodara Municipal Corporation on 10.4.2019. Even separate Municipal tax bills were issued by the Corporation for each of 10 units and in the interregnum period, Vadodara Municipal Corporation proposed an intention for Town Planning Scheme, which also covers the land of the petitioners and then issued notification under Section 48 of the Gujarat Town Planning Act on 24.2.2014. A perusal of the said notification covers the portion of the land belonging to the petitioners. Then, subsequently, the steps have been taken in respect of the said Town Planning Scheme and since petitioners were not against the order/ proposal dated 24.10.2016, they did not submit objection to the respondent No.3, but then on 23.6.2017, the respondent No.3, i.e. Town Planning Officer, re-proposed the Final Plot No.27 and allotted the same as entire original Plot No.27 admeasuring 9611 Sq. Mtrs. instead of 9482 Sq. Mtrs. and thereby again the petitioners were called upon to submit their objections. It has been mentioned by the petitioners that no deduction was proposed as construction and development activities were carried out prior to coming into force of the draft Town Planning Scheme No.27 (Taldalja). To utter shock and surprise, after one and half years, according to the petitioners, without assigning any reasons, when the petitioners were allotted final plot equivalent to original plot vide proposal/ order dated 7.1.2019, the Town Planning Officer has proposed to allot Final Plot No.27 only to the extent of the area admeasuring 5767 Sq. Mtrs. in lieu of original Plot No.27 admeasuring 9611 Sq. Mtrs., that means deduction to the extent of 40% of the land was proposed, which has constrained the petitioners to file specific representations. The said deduction which has been proposed on 7.1.2019 is completely illegal, arbitrary, contrary to the Act and the propositions, even the notification and guidelines, hence detailed objections were filed by the petitioners on 15.1.2019 against the same. Thereafter, the petitioners filed further representation on 22.1.2019 before the Chief Town Planner Officer, requesting inter alia to allot area of final plot same as that of original plot as per their own earlier earlier proposal. But, the said representation has remained attended, which has constrained the petitioners to submit another representation on 11.6.2019.

(3.) According to the petitioners, on one side, the petitioners' representations were not being dealt with, whereas on the other hand, again the respondent No.3- Town Planning Officer without considering and appreciating the objections passed further proposal/ order on 31.7.2019 proposing to allot Final Plot No.27 admeasuring 5767 Sq. Mtrs. in lieu of the original area and called upon the petitioners to submit their objections. In view of this, the petitioners also filed further representation on 8.8.2019 requesting the authority to withdraw this proposal dated 31.7.2019 and also requested to decide pending representations. But, somehow the authority has chosen not to consider the same despite the fact that even the persons who purchased the units have also submitted their specific objections on 9.8.2019 to the respondent No.3 Town Planning Officer but, having not attended to these representations, left with no alternate, the petitioners are constrained to approach this hon by way of the present petition.