SAVITABEN CHATURBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 226 of Constitution of India the petitioners have prayed for an appropriate Writ, direction and/or order directing respondent No. 1 State Authority to vary Preliminary Town Planning Scheme No. 45 (Chandlodia Gota) under Section 70 and/or 71 of the Gujarat Town Planning and Urban Development Act, 1976 ('the Act' for short) qua the petitioners property and thereby allot final plot proportionately after considering the difference as prayed for by the petitioners in the representations. It is also further prayed for an appropriate Writ directing respondent No. 2 Ahmedabad Urban Development Authority to move the proposal for variation of aforesaid scheme before the respondent No. 1 State Authority.

(2.) IT is the case on behalf of the petitioners that father of the petitioners was holding land bearing Survey no. 237 admeasuring 3 Acres 37 Gunthas (15884. 00 Sq. Mtrs) of Village Chandlodia, Taluka and City Ahmedabad. It is the case on behalf of the petitioners that in the village Form No. 6 and 7/12 abstract, Village Form No. 1 and records of District Inspector of Land Records (DILR), the area of land is mentioned as 15884. 00 Sq. Mts. That after the death of the father of the petitioners, they are owners of the aforesaid land. That aforesaid land was subjected to Draft Town planning scheme No. 45 (Chandlodia Gota) and Draft Town planning scheme no. 45 was submitted and State Government sanctioned said Draft Town planning scheme no. 45 and as per the same under the aforesaid Town planning scheme, the petitioners were alloted original Plot No. 50 admeasuring 14307. 00 Sq. Mts. and inlieu of original plot, the petitioners came to be alloted final plot No. 50 admeasruing 8584. 00 Sq. Mts. On sanctioning draft Town planning scheme by the State Government, Town Planning Officer was appointed to prepare preliminary Town Planning Scheme. That in the Preliminary Town planning scheme, original plot of the petitioners was shown as original plot no. 50 admeasuring 14307. 00 sq. mts and inlieu of the same final plot no. 50 admeasuring 8586. 00 sq. mts. came to be allotted. It is the case on behalf of the petitioners that as instead of 15,884. 00 sq. mts. out of survey no. 237 owned by the father of the petitioners, appropriate authority and State Government considered 14307. 00 sq. mts. and to that extent error was committed by the appropriate authority / Town Planning Officer / State Government while sanctioning draft town planning scheme as well as preliminary town planning scheme, therefore, the petitioners made detailed representation on 15. 12. 2008 and requested the authorities to allot final plot after considering difference in the original plot which according to the petitioners was wrongly calculated by the authorities i. e. 14307. 00 sq. mts. instead of 15,884. 00 sq. Mts. That respondent No. 3 Chief Town Planner, Gandhinagar informed the petitioners that since the Preliminary town planning scheme has already been sanctioned, now the prayer of the petitioners cannot be accepted. Therefore, the petitioners moved another representation for variation of scheme in exercise of power sunder Section 70 and 71 of the Act. It is the case on behalf of the petitioners that during pendency of the preliminary town planning scheme, the petitioners transferred the land admeasuring 8485. 00 sq. mts. to one Avirat Chandlodia Projects and while preparing the plans qua that land, discrepancy and error came to the knowledge of the petitioners. It is the case on behalf of the petitioners that on 19. 09. 2009, the petitioners have moved another representation to the respondent authorities for variation of Preliminary Town planning scheme no. 45 in exercise of powers under section 70 and 71 of the Act. However, as the petitioners have not received any positive reply, petitioners have preferred present Special Civil Application under Article 226 of the Constitution of India.

(3.) MR. BHARGAV Bhatt, learned Advocate for the petitioners has vehemently submitted that instead of 15884. 00 sq. mts. , the appropriate authorities considered area of original land i. e. Survey No. 237, O. P. No. 50 as 14307. 00 Sq. mts. and accordingly petitioners came to be allotted final plot no. 50, land admeasuring 8584. 00 sq. mts. and therefore, error to that extend appropriate authorities / State Government is required to corrected by variation of Preliminary Town planning scheme. It is submitted that under Section 70 and 71 of the Act, appropriate authority suo-moto and/or on application may request for variation of scheme if there is error in the scheme. It is submitted that even State Government under Section 70 (2) of the Act has suo-moto powers to vary scheme if it is found defective on account of error, irregularity, etc. It is submitted that in the present case while preparing Form F there was error in mentioning area of land of survey no. 237, O. P. No. 50, which the authorities are bound to correct by variation of the scheme. Mr. Bhatt, learned Advocate for the petitioners has relied upon decision of learned Single Judge in the case of Mukundlal Trikamlal Patwa v/s. State of Gujarat reported in 2007 (1) GLR 761 and has submitted that as held by this Court if the scheme is defective on account of error, irregularity, etc. , it is required to be varied by the authorities exercising powers under section 70 of the Act even after the scheme is finalised. It is submitted that in the aforesaid case, learned Single Judge issued direction to the State Government to decide question of variation of the scheme after giving opportunity of being heard to parties. Relying upon aforesaid decision it is requested to allow present Special Civil Application directing State Government to decide question of variation of scheme no. 45 to the extend stated herein above and with respect to the petitioners land.