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SCA/10349/2008 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10349 of 2008
=========================================================
BABUBHAI
NATHUBHAI CHAUHAN & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR BC DAVE for Petitioner(s) :
1 - 2.
GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE SERVED
BY DS for Respondent(s) : 1,
MR DHAVAL G NANAVATI for
Respondent(s) : 2,
None for Respondent(s) : 3,
MR HS MUNSHAW
for Respondent(s) :
4,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 18/01/2010
ORAL
ORDER
By
way of this petition under Article 226 of the Constitution of India,
petitioners have prayed for an appropriate writ, direction and order
quashing and setting aside the Notification dated 9.5.2008
(Annexure-E to the petition) issued under Section 19(1) of the
Gujarat Town Planning and Urban Development Act, 1976 (herein after
referred to as ‘the Act’) by which, it is proposed to modify the
development plan of the Surat Urban Development Authority sanctioned
under Government Notification dated 2.9.2004. In the alternative, it
is prayed for an appropriate writ, direction and order directing the
respondents to provide final plots of the same area considering the
fact that a scheme has been sanctioned under Section 21(1) of the
Urban Land Ceiling Act, 1976 dated 12th
July, 1994.
The
grievance made by the petitioner is with respect to constructing 45
Mtrs. wide road passing through Block No.95, 94, 62, etc. more
particularly, from the land passing through Block No.43 belonging to
the petitioners. At the outset, it is required to be noted that the
aforesaid land in question is as such, under the Draft Town Planning
Scheme No.38 (Nana Varachha) which has been sanctioned by the State
Government and the possession of the same has been taken over by the
appropriate Authority for the construction of the road in exercise
of the powers under Section 48-A of the Gujarat Town Planning Act.
It is to be noted that petitioner has never challenged the Draft
Town Planning Scheme which has been sanctioned by the State
Government. It is also required to be noted, at this stage, that on
the land in question road has already been constructed under the
Town Planning Scheme No.38 (Nana Varachha, Surat). As stated above,
petitioners have never challenged the Draft Town Planning Scheme
Nos.38 and 68 sanctioned by the State Government. What is challenged
by the petitioners is Notification dated 9.5.2008 of the Officer on
Special Duty and Ex-officio, Deputy Secretary to the Government of
Gujarat, Urban Development and Urban Housing Department, issued in
exercise of powers under Section 19(1) of the Gujarat Town Planning
Act; whereby, it has been decided/proposed to modify development
plan of the Surat Urban Development Authority, which was sanctioned
vide Government Notification dated 2.9.2004 by the Urban Development
and Urban Housing Department. So far as challenge to the said
Notification dated 9.5.2008 is concerned, it is to be noted that
even under the said Notification, all persons concerned are called
upon to submit their objections / suggestions, if any, with respect
to the proposed variation, to the Principal Secretary, Urban
Development and Urban Housing Department, Government of Gujarat, in
writing within a period of 2 (two) months from the date of
publication of the said Notification in the official gazette. It is
reported that so far as the petitioners are concerned, they have
already submitted their suggestions / objections against the said
proposed variation and/or proposal to modify the aforesaid
development plan.
Under the
circumstances, when petitioners have already submitted their
objections / suggestions, before considering and/or taking final
decision to modify the aforesaid development plan by way of
variation in the manner specified in the schedule, the appropriate
Authority is bound to consider the suggestions / objections
submitted by the petitioners. Still it is ordered and directed that
before taking any final decision to modify the development plan of
the Surat Urban Development Authority sanctioned by the Government
Notification dated 2.9.2004 by the Urban Development and Urban
Housing Department for variation in the manner specified, scheduled
and appended to the said Notification dated 2.9.2004, appropriate
Authority to consider the said objections / suggestions in
accordance with law and on merits.
With this and for
the aforesaid observations, present special civil application is
disposed of.
(M.R.SHAH, J.)
(ashish)
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