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LPA/698/2010 4/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 698 of 2010
In
SPECIAL CIVIL APPLICATION No. 11478 of 2009
With
CIVIL
APPLICATION No. 3785 of 2010
In
LETTERS PATENT APPEAL No. 698 of
2010
=============================================
BAL
SHIKSHAN SAMITI TRUST & 1 - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=============================================
Appearance
:
MR
MEHUL S SHAH for Appellant(s) : 1 - 2.MR SURESH M SHAH for
Appellant(s) : 1 - 2.
None for Respondent(s) : 1 -
3.
=============================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 20/04/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
The
appellants are original petitioners. They had filed Special Civil
Application No.11478 of 2009 which came to be dismissed by the
learned Single Judge by his order dated 01.02.1010, which the
appellants have challenged in the present Letters Patent Appeal.
2. It
appears that the petitioners run a school which is situated in Final
Plots Nos. 267 and 268 of Town Planning Scheme No.2 of Vadodara.
Between the said two Final Plots Nos. 267 and 268, there has been a
proposal to construct Town Planning Road of 7.5 meters width. The
Town Planning Scheme has been duly sanctioned by the Government way
back in the year 1976 and came into effect from 15.03.1976.
3. In
the writ petition, the main prayer of the petitioners was that the
said Scheme be varied to the extent of annulment of 7.5 meters road
dividing Final Plots Nos. 267 and 268 of the Town Planning Scheme
No.2.
4. It
appears that the construction of the school building carried out by
the petitioners was in excess of the approved plans. Part of the
construction falls in the margin land of the said Town Planning Road.
Municipal authorities, therefore, issued a show cause notice dated
26.08.2009 to the petitioners u/Sec.260(1) of the Bombay Provincial
Municipal Corporations Act, 1949 (`BPMC Act’ for short) calling upon
the petitioners to remove such unauthorised construction. Petitioner
replied to the said show cause notice vide a detailed representation
dated 03.09.2009. Municipal authorities, however, passed an order
dated 23.09.2009 rejecting the objections of the petitioners. This
rejection order also has been challenged by the petitioners in the
writ petition.
5. Upon
perusal of the reply to the show cause notice filed by the
petitioners it can be seen that the main thrust of the representation
of the petitioners was that the said Town Planning road of 7.5 meter
width is no longer useful or necessary. The Town Planning Scheme,
therefore, should be varied. It is primarily on this ground that the
proposal for removal of the unauthorised construction was sought to
be opposed. Significantly, no contention has been raised by the
petitioners that the construction indicated in the show cause notice
is not in excess of the plan passed and if the Town Planning road
stands, the construction of the petitioners would be within the
margin of the said road. Thus, admittedly, the construction is in
excess of the approved plans.
6. Before
the learned Single Judge also the main thrust of the arguments of the
petitioners was that the Town Planning Road has become redundant and
that the Town Planning Scheme should, therefore, be varied. It was
also pointed out that at one stage the Municipal authorities had also
considered the possibility of varying the Town Planning Scheme. Be
that as it may, the Town Planning Scheme was eventually not varied.
Learned Single Judge considered the submissions and found it not
possible to grant direction to vary the Town Planning Scheme. The
contention of the petitioners that the school accommodates large
number of students and sudden removal of the construction would cause
undue hardship to the students was sought to be obviated by the
learned Single Judge, by offering a breathing time to the petitioners
to vacate the premises. This offer was, however, not accepted.
Before
us the sole contention raised by counsel of the appellants was that
the impugned order dated 23.09.2009 rejecting the objections of the
petitioners is a non-speaking order. It was contended that when
Section 260(2) requires the authorities to consider the objections of
the petitioners in response to the notice under Section 260(1) of the
BPMC Act, it is incumbent upon the competent authority to give
reasons for not accepting such objections. Reliance was placed on
the decision of the Apex Court in The Secretary & Curator,
Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Ors.
reported in AIR 2010 SC 1285.
In
the said petition, however, the Apex Court was considering a case
where the recommendations of Expert Committee appointed by High Court
in absence of any allegation of malafide or disqualification raised
against any Member of the Committee, were rejected without assigning
valid and good reasons. In that background, the Apex Court found the
order illegal.
Reliance
was also placed on the decision of a learned Single Judge dated
11.08.2005 passed in Special Civil Application No.8863 of 1995
wherein with respect to the provisions of Sec.260 of the BPMC Act,
the learned Single Judge observed:
In
my opinion, the petitioners cannot be deprived of their property
without the sanction of law and without payment of reasonable
compensation. If Rajkot Municipal Corporation requires the land of
the petitioners for drawing fresh line for public street or for any
other public purpose, then it can do so by initiating the process of
acquisition which would necessarily involve giving of opportunity of
hearing to them and payment of compensation. Under no circumstances,
the petitioners can be deprived of their property without following
the procedure established by law and without being given reasonable
opportunity to defend their property.
7. None
of the two decisions cited above would apply to the present case. We
are not laying down any legal proposition of absolute application for
all cases. However, in the facts of the present case, we find that
not giving elaborate reasons by the authority while not accepting the
objections of the petitioners would not be fatal to the order. In
the present case, virtually all factual aspects are admitted. The
existence of 7.5 meter Town Planning road between the two Final Plots
is not in dispute. The fact that construction as it exists today of
the school building of the petitioners falls within the margin area
of such road is also not in dispute. The construction being in
excess of the plan permitted is also not controverted by the
petitioners. As noted earlier, on behalf of the appellants only
ground urged was that the order of the authority rejecting the
objections of the appellants was a non-speaking order. No arguments
are made regarding prayer for variation of the Scheme. Even
otherwise, we find that such a request cannot be sustained. Learned
Single Judge has given elaborate reasons to refuse such prayer. No
error, irregularity or infirmity in the Scheme is established. The
Scheme was finalised way back in the year 1976. In view of
undisputed facts noted above and in absence of any possibility if
variation in the Scheme, construction of the petitioners cannot be
saved. Non-recording of detailed reasons therefore in the present
case would not be fatal.
8. Counsel
for the appellants lastly submitted that Municipal authorities before
taking possession of the land of the appellants for construction of
the road must pay the compensation for the same. Such question was
never before the learned Single Judge. This ground has not been
raised in the Appeal also. There are no factual averments on record
to permit us to examine this grievance of the appellants. This
ground is therefore not possible to be considered in this Appeal. In
any case, nothing stated in this order is meant to authorise the
municipal authorities to take possession of the land de hors the law.
In
the result, the appeal fails and is dismissed. Civil Application
also stands dismissed.
(S.J.
MUKHOPADHAYA, C.J.)
(AKIL
KURESHI, J.)
[sn
devu] pps
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