SHREEJI SWAROOP GURUWARYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner - Trust has sought a writ of Mandamus or a writ in the nature of Mandamus for quashing and setting aside the notice dated 22.02.2016 issued by the Assistant Estate Officer, New West Zone, and also the order dated 17.06.2015 issued by Deputy Estate Officer of respondent - Municipal Corporation, and for commanding the respondents to take appropriate steps to vary Town Planning scheme No. 45 (Chandlodia - Gota), (hereinafter referred to as 'the said scheme), more particularly in respect of the Final Plot No. 56, sanctioned under the provisions contained in the Gujarat Town Planning and Urban Development Act (hereinafter referred to as 'the said Act').

(2.) The short facts giving rise to the present petition are that the land bearing Survey No. 242 originally belonged to one Ravjibhai Maganbhai Patel, who sold out 1619 sq. yards of land to Shreeji Swaroop Guruwarya Shri Punja Bapa Satsang Mandal Sanchalit Shri Akshar Purushottam Swaminarayan Mandir, Chandlodia Trust by executing a declaration on 12.10.1997 and handing over possession thereof to the Administrator of the said temple. The said Ravjibhai also executed a general Power of Attorney in favour of one Chandrakantbhai Amrutbhai Patel, one of the Administrators of the said temple and now the managing trustee of the petitioner - Trust. It is further case of the petitioner that a Hari Mandir was established by followers of Lalji Bapa Gurumaharaj, who expired on 26.09.1995, and was cremated on the land Bearing Survey No. 241, where his Samadhi exists. Before a formal deed of conveyance could be executed in favour of the petitioner - Trust, the said Ravjibhai passed away and thereafter his legal heirs sold the part of the land bearing Survey No. 242 to one Vijay Dahyabhai Nanera and others on 27.05.2011. The petitioner has also filed the suit for specific performance of the agreement against the legal heirs of the said Ravjibhai, and for cancellation of the said sale deed. However, in the meantime, under the preliminary Town Planning scheme, the Survey No. 242 came to be allotted Original Plot No. 56 and was reconstituted as Final Plot No. 56. A reconstitution statement came to be issued in respect of Survey No. 242 stating that there was a construction on the Original Plot No. 56 and that the share of the land owners in the Final Plot shall be proportionate to their share in the original plot. The petitioner submitted the objections to the respondent authorities more particularly, with regard to the land bearing Survey Nos. 241 and 242. It is further case of the petitioner that thereafter the preliminary scheme came to be sanctioned by the State Government with effect from 04.12.2008, under which the situation of Final Plot No. 56 as shown in the Draft Town Planning Scheme was altered. The Estate and City Improvement Officer of the respondent Corporation had issued a notice under Section 67 of the said Act on 06.02.2012 to the original owners, and further notice dated 03.03.2012 along with the sketch of the land under Section 68 of the said Act, was pasted on the temple on 26.03.2012. The petitioner - Trust therefore made representation on 20.03.2012 requesting the respondent authorities to vary the scheme. Thereafter also, the petitioner kept on making representation and writing letters requesting the respondent authorities for variation of the scheme, however, no decision was being taken by the concerned authorities. According to the petitioner, if the Town Planning Scheme was implemented, the temple of the petitioner - Trust would be divided into two parts, and one part of the structure would form part of Final Plot No. 47. Thereafter, the final scheme came to be sanctioned by the Government on 12.05.2015, and the legal heirs of the deceased Ravjibhai received a notice dated 22.02.2016 from the respondent Corporation under Section 68 of the said Act. The petitioner having come to know about the same, again submitted objections to the respondent Corporation on 01.03.2016. When the petitioner visited the office of the Corporation, the petitioner was given copy of the letter dated 17.06.2015 rejecting the objections dated 20.03.2012 raised by the petitioner. The petitioner therefore has challenged the said notice dated 22.02.2016 and the order dated 17.06.2015 (Annexure A and B respectively).

(3.) The petition has been opposed by the respondent Corporation by filing the reply contending inter alia that the draft Town Planning scheme was sanctioned by the State Government under Section 48(2) of the Act vide notification dated 26.08.2003. Thereafter, the Town Planning Officer having been appointed, he had prepared the preliminary scheme, which was sanctioned by the Government on 04.12.2008, which has become part of the Act under Section 65 of the said Act. Hence, the rights of the owners and occupiers of the original plots which were reconstituted into Final Plot had stood determined in view of Section 67 of the said Act. According to the respondent, the land bearing Survey No. 242 was owned by one Bhailal Ramji and others. The said Survey Number was divided into 242/1 and 242/2. As per the sanctioned preliminary Town Planning scheme, the Survey No. 242 was allotted Original Plot No. 56 admeasuring 2529 sq. mtrs., and in lieu thereof, Final Plot No. 56 admeasuring 1517 sq. mtrs. was allotted to the original owners, as per the redistribution and valuation statement at Annexure R-III. Accordingly, the impugned notices under Section 67 and the notices under Section 68 read with Rule 33 were issued to the owners and occupiers including the present petitioner. However, the petitioner did not have any legal right over the said land, the objections raised by the petitioner were rejected vide order dated 17.06.2015 in accordance with law. It is further contended that having regard to the facts and circumstances of the case, the prayer for variation of Town Planning scheme also could not be granted.