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SCA/1734/1998 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1734 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE R.S.GARG
=========================================================
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 ?
=========================================================
MANIBEN
MADHAVLAL DALWADI & 6 - Petitioner(s)
Versus
VADODARA
MUNICIPAL CORPORATION & 2 - Respondent(s)
=========================================================
Appearance
:
MR
VIKRAM THAKOR for Petitioner(s) : 1 - 7.
None for Respondent(s) :
1,
MS MAYA DESAI,for Respondent(s) : 2,
MR DIPEN DESAI,
ASSTT.GOVERNMENT PLEADER for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE R.S.GARG
Date
: 07/05/2007
ORAL
JUDGMENT
Shri
Vikarm Thakor, learned counsel for the petitioners; none for the
respondent no.1; Ms. Maya Desai, learned counsel for the respondent
no.2; Shri Dipen Desai, learned AGP for the respondent no.3.
By
this petition, the petitioners-erstwhile owners of Survey No. 383
are challenging the correctness, validity and propriety of allotment
of Final Plot No. 101 which was carved out of the original Survey
No. 383, and are also challenging the impugned notice dated 24.2.98,
requiring the petitioners to hand over possession of the land over
which construction exists, which, according to the petitioners could
not be included in the Scheme and as the land in dispute, that is,
Survey No. 383 was having construction over it, the land could not
be included in the Scheme.
Submission
of the learned counsel for the petitioner is that out of original
Survey No. 383, Final Plots No. 61, 63 and 101 have been created and
some land has gone in development of the road etc., according to
him, Final Plot No. 101 could not be allotted in favour of any
third party.
Ms.
Maya Desai, learned counsel for the respondent no.2 and Shri Dipen
Desai, learned AGP for the respondent no.3 submit that provisional
Town Planning Scheme was not challenged by the petitioners by filing
any objections, they did not even challenge the final Scheme and in
view of the non-challenge, the Scheme was finalized. Once the Scheme
is finalized, then, under Section 65[3] of the Gujarat Town Planning
and Urban Development Act, 1976, it would become part of the Act.
According to them, if the respondents are acting in accordance with
law by demanding possession or making allotment on the ground that
the property had vested in them, then, notice or the allotment
cannot be challenged in these proceedings.
Section
65[3] of the Act clearly provides that on and after the date fixed
in the notification to be issued by the Government, the preliminary
scheme or the final scheme, as the case may be, shall have effect as
if it were enacted in the Act. Once the Scheme becomes part of the
Act, then, vires of the Scheme would be required to be challenged.
Undisputedly, even in these proceedings, validity of the Scheme
has not been challenged. If the Scheme has become final and has
obtained status of the part of the Act and the authorities are
acting in accordance with the Scheme, then, the petitioners would
not be entitled to say that Final Plot No. 101 cannot be allotted
in favour of anybody nor would they be allowed to say that in view
of Section 45 of the Act because of the existing construction, the
property could not be included in the Scheme for reconstitution of
the plots.
The
petition deserves to and is accordingly dismissed. Rule is
discharged. There shall be no orders as to costs. Interim relief, if
any, is vacated.
[R.S.
GARG, J.]
pirzada/-
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