Gujarat High Court Case Information System
Print
SCA/6246/2008 7/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6246 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
AUTHORISED
OFFICER & 1 - Petitioner(s)
Versus
MIRABEN
GAJANAND PAREKH & 1 - Respondent(s)
=========================================================
Appearance
:
MR
PRASHANT G DESAI for
Petitioner(s) : 1 - 2.
MR MP SHAH for Respondent(s) : 1,
MS.
KRUTI M SHAH for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 30/07/2008
ORAL
JUDGMENT
By
way of this petition under Article 227 of the Constitution of India,
the petitioners ? original
defendants have prayed for appropriate writ, order and/or
directions, for quashing and setting aside the judgement and order
dtd.28/2/2008 passed by the learned Presiding Officer, FTC No.5,
Surat at Vyara in Misc.Civil Appeal No.13 of 2005 in allowing the
same by quashing and setting aside the order dtd.5/4/2005 passed by
the learned Senior Civil Judge (SD), Bardoli below application Ex.5
in Regular Civil Suit No. 198 of 2003, directing the petitioners
herein not to demolish the suit property i.e. Bungalow No.264 of
Survey No. 113 without following the provisions of the Gujarat Town
Planning and Urban Development Act, 1976 (hereinafter shall be
referred to as ?Sthe Act?? for short) strictly.
The
intention to prepare Town Planning Scheme
No.2 (Bardoli) was declared and in the said Town
Planning Scheme, Sarvoday Cooperative Housing Society was
holding Revenue Survey No.4790 and other Survey Numbers which were
given original plot in the said Town Planning
Scheme. The said society was given Final Plots admeasuring
29765.45 sq.mtrs. and the remaining portion was carved out for the
road purpose. That the Town Planning Scheme
has become final under the provisions of the Act. That the
respondent No.1 herein ? original plaintiff is having her
residential premises which is going in the Town
Planning Road under the finalised Town
Planning Scheme. A notice was issued to the respondent No.1
– original plaintiff by the Town Planning Officer in respect of
compensation on 9/5/1983. It is to be noted that even an opportunity
was given prior to the finalisation of the Town
Planning Scheme. Preliminary Town
Planning Scheme came to be sanctioned by the State Government
on 24/11/1983 and the same came to be finalised b the State
Government on 20/11/1990. That thereafter, the petitioners issued
notice under sec.68 of the Act and Rule 33 of the Rules for removal
of the offending construction which was going in the Town
Planning Road and therefore, the respondent No.1 herein ?
original plaintiff filed Regular Civil Suit No. 198 of 2003 before
the trial court along with an application at Ex.5 for interim
injunction. Initially the learned trial court passed order of
status-quo, however, subsequently, after considering the provisions
of the Act and various decisions of this Court, the trial court by
the order dtd.5/4/2005 rejected the application Ex.5 and vacated the
order of status-quo. Being aggrieved by the order passed below
application Ex.5 dtd.5/4/2005 in vacating the order of status quo,
the respondent No.1 ? original plaintiff preferred Civil
Misc.Appeal No.13 of 2005, which came to be heard by the learned
Presiding Officer, FTC No.5, Surat at Vyara, who wide his judgement
and order dtd.28/2/2008 allowed the said appeal by directing the
petitioners herein not to demolish the suit property i.e Bungalow
No.264 of Survey No.113 without following the provisions of the Act
strictly. Being aggrieved by the same, the petitioners original
defendants have preferred the present Special Civil Application
under Article 227 of the Constitution of India.
Mr.Prashant
G.Desai, learned advocate appearing on behalf of the petitioners
has vehemently submitted that the appellate court has materially
erred in allowing the appeal. It is submitted that once Town
Planning Scheme has become final and some portion of the
property in question is going under the Town
Planning Road under the finalised Town
Planning Scheme, everybody has to act as per the finalised
Town Planning Scheme and as such it is
the duty cast upon the appropriate authority to implement the
finalised Town Planning Scheme. It is
submitted that for implementation of the finalised Town
Planning Scheme notice under sec.68 of the Act read with
sec.33 of the Rules came to be issued and considering the same when
the trial court has vacated the order of status-quo, the appellate
court ought not to have allowed the appeal disturbing the order
passed by the trial court. It is further submitted that as such on
implementation of the finalised Town Planning
Scheme all the lands vest in the appropriate authority absolutely
free from all encumbrances and therefore, it is requested to allow
the present Special Civil Application.
Mr.Prashant
Desai, learned advocate appearing on behalf of the petitioners has
relied upon the decisions of the Hon’ble Supreme Court in the case
of The Municipal Corporation for Greater Bombay and another
Vs. The Advance Builders (India) Pvt.Ltd. and others,
reported in AIR 1972 SC 793 and in the case of N.Nandlal
Kiklawala and another Vs. State of Gujarat and others,
reported in AIR 2006 SC 1.
The
petition is opposed by Ms.Kruti Shah, learned advocate appearing on
behalf of the respondent No.1 ? original plaintiff b submitting
that the land in question was released from the acquisition under
the Land Acquisition Act and considering the same, the appellate
court has allowed the appeal and therefore, the same is not required
to be interfered with by this Court in exercise of the powers under
Article 227 of the Constitution of India. It is also submitted that
unless and until, compensation as provided under the Land
Acquisition Act, is paid to the respondent No.1 ? original
plaintiff, the appropriate authority cannot demolish the
construction and cannot take the possession of the property of the
disputed property. By making above submissions, it is requested to
dismiss the present Special Civil Application.
Heard
the learned advocate appearing on behalf of the respective parties
At
the outset, it is required to be noted that the Town Planning Scheme
No.2 (Bardoli) is finalised and has been sanctioned by the State
Government way back in the year 1990 and some portion of the
residential premises of the respondent No.1 ? original plaintiff
is going under the finalsied Town Planning Scheme. For
implementation of the Town Planning Scheme, the authority issued
notice under sec.68 of the Act read with rule 33 of the Rules. As
held by the Hon’ble Supreme Court in the The Municipal
Corporation for Greater Bombay (Supra) it is the duty of the
appropriate authority to implement the Town Planning Scheme. In the
case of N. Nandlal Kiklawala and Another (supra), the
Hon’ble Supreme Court considering the aforesaid decision, has
directed the appropriate authority to implement the sanctioned Town
Planning Scheme, by holding that the statutory consequences which
flow from sanctioning of the Scheme must be followed. It is to be
noted that the Town Planning Scheme has become final after
considering the objections by the society as well as the respondent
No.1 ? original plaintiff. Under the provisions of the Act, once
the Town Planning Scheme has become final and is sanctioned, it
becomes part of the Act and it cannot be challenged. On
implementation of the Town Planning Scheme, all the lands vest in
the appropriate authority free from all encumbrances. The
petitioners have been issued notices under sec.68 of the Act read
with rule 33 of the Rules for implementations of the final Town
Planning Scheme and for widening of the Town Planning Road, which
is sanctioned under the Act. In view of the above, for the purpose
of the implementation of the Town Planning Scheme which has become
final, if any construction is to be removed, then that consequences
must follow.
The
contention on behalf of the learned advocate appearing on behalf of
the respondent No.1 ? original plaintiff that earlier the land
in question was sought to be acquired under the Land Acquisition Act
and the same was released. However, it is to be noted that the
proceedings under the Land Acquisition Act and the the Town
Planning Act are different. Now so far as the submissions on behalf
of the respondent No.1 that plaintiff should be paid compensation
under the Land Acquisition Act is concerned, the same cannot be
accepted. Whatever is available to the respondent No.1 by way of
compensation under the Town Planning Act can be paid to her and the
compensation as provided under the Land Acquisition Act cannot be
paid to her, as the land is not acquired under the Land Acquisition
Act, but the land is going under the Town Planning Act. Considering
above facts and circumstances and the aforesaid two decisions of the
Hon’ble Supreme Court, it can be said that the appellate court has
committed an error in restraining the appropriate authority to
demolish the construction which is required to be demolished for the
purpose of widening of the Town Planning Road under the finalised
Town Planning Scheme and therefore, the same requires to be quashed
and set aside.
For
the reasons stated above, the petition succeeds. The impugned
judgement and order dtd.28/2/2008 passed by the learned Presiding
Officer, FTC No.5, Surat at Vyara in Civil Misc.Appeal No.13 of 2005
is hereby quashed and set aside. Rule is made absolute accordingly.
In the facts and circumstances of the case there shall be no order
as to costs.
[M.R.
SHAH, J.]
rafik
Top