IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 402 of 1998 For Approval and Signature: Hon'ble CHIEF JUSTICE MR.K.G.BALAKRISHNAN and Hon'ble MR.JUSTICE M.H.KADRI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 1 to 6 : No -------------------------------------------------------------- NEELABEN ASHWINBHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AJ PATEL for Petitioners Mr.S.N. Shelat, Additional AG, with Mr. S.R. Divetia, AGP, for Respondent No. 1, 2, 5 and 6 MR RM CHHAYA for Respondent No. 3 NOTICE SERVED BY DS for Respondent No. 4 -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR.K.G.BALAKRISHNAN and MR.JUSTICE M.H.KADRI Date of decision: 29/09/98 C.A.V. Judgment: (Per: Kadri, J.) 1. Rule. Service of Rule is waived by Mr.S.R.Divetia, Assistant Government Pleader, on behalf of respondents Nos. 1, 2 5 and 6 and Mr.R.M. Chhaya, learned advocate, on behalf of respondent No.3. 2. The petitioners, by filing this petition under Article 226 of the Constitution of India, have prayed for following reliefs: "(A) The Honourable Court may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned Resolution at Annexure M, R & S hereto; and consequently directing the concerned respondents not to disturb possession of the petitioners and permit them to develop in accordance with the relevant provisions of the Act land bearing Final Plot No.676, 677, 678 of Town Planning Scheme No.28 of Nava Wadaj; (B) The Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction declaring section 71 of the Act to be ultra vires Articles 14 19 and 300A of the Constitution of India and consequently striking down the same from the Statute; (C) The Honourable Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction declaring that the impugned action on the part of the concerned respondents in undertaking variation of Town Planning Scheme No.28 of Nava R on the part of the concerned respondents and is illegal, null and void. The brief facts leading to filing of the petition be summarized as under: 3. The petitioners are owners of original plots Nos.177, 178, and 179 of village Wadaj, Taluka: City, District: Ahmedabad. The respondent No.3-Ahmedabad Municipal Corporation ("AMC" for short), prepared a town planning scheme No.28, in which the lands of the petitioners were included. The said scheme was prepared by resolution No.638 dated 17.9.1968. The said draft town planning scheme was approved by the State Government on 8.1.1979. The said scheme framed by the AMC claimed to be notified on 12.10.1989 and was implemented with effect from 27.1.1981 and it became final on 5.4.1982. 4. As per the say of the petitioners, the lands of plots Nos.177, 178 and 179 of town planning scheme No.28 were abutting the jail road and were vested in the AMC for construction of "Chimanbhai Patel Overbridge". The petitioners were allotted final plots Nos.676, 677, and 678, admeasuring 1103, 979, and 998 respectively, under the said town planning scheme. The petitioners contended that, as per the provisions of Sections 68 and 69 of the Gujarat Town Planning and Urban Development Act, 1976 ("Act" for short), the respondents were under obligation to hand over the possession of the aforesaid final plots to the petitioners immediately, after the possession of the original plots nos. 177, 178 and 179 was taken away from the petitioners. According to the petitioners, they were deprived of the possession of final plots Nos. 676, 677 and 678, and they had to move from pillar to post and one officer to another and from one department to another and, even after the period of 14 years, they were not handed over possession of said final plots. It appears from the record of the petition that several representations and correspondence had taken place between the petitioners, AMC, Jail Authorities of Sabarmati Central Prison, Ahmedabad, and the Home Department of Gujarat State. 5. The petitioners filed Special Civil Application No.5366 of 1995 in this High Court, as they did not get possession final plots Nos. 676, 677 and 678. In the said Special Civil Application, by way of ex-parte ad-interim relief, the authorities were directed to hand over possession of final plots Nos. 676, 677 and 678 to the petitioners. Against the grant of ex-parte ad-interim relief, the respondents filed Letters Patent Appeal No.435 of 1995 which ultimately came to be dismissed by this High Court. It is averred that, during pendency of the Letters Patent Appeal, a suggestion was made by the High Court to find out an amicable solution. Since the petitioners were offered land of dumping ground and over a part of which high tension grid is passing and on which construction, in law, is prohibited, the said suggestion was not acceptable to the petitioners and the talks of settlement had failed. After dismissal of Letters Patent Appeal, the petitioners had filed an undertaking to the effect that they will not develop or deal with the lands in question for a period of one year from the date of the undertaking. The concerned respondents filed Civil Misc. Application No.2252 of 1996 for extension of period of one year. It is alleged by the petitioners that extension sought for by the authorities was to harass the petitioners and the authorities were acting with vengeance just to deprive the petitioners of the land. It is the say of the petitioners that inter-departmental correspondence had taken place with mala fide intention to deprive the petitioners of possession of the final plots in question as a result of which Misc. Civil Application No.2252 of 1996 was filed. 6. To the utter surprise of the petitioners, a public notice appeared in the daily newspaper, Gujarat Samachar, on 17.12.1996, to vary the town planning scheme, which had become final on 4.5.1982. Due to the public notice to vary the scheme, the petitioners filed Civil Application No.33 of 1997 in Special Civil Application No.5366 of 1995, for amendment. At the time of hearing of the said application for amendment, the concerned respondents contended that the variation was at a formative stage and, before it could be finalised, the petitioners would be afforded an opportunity of being heard. 7. Special Civil Application No.5366 of 1995 came up for hearing before the Court (Coram: Rajesh Balia, J) and the Court, by order dated 1.4.1997, held that the action of variation of the town planning scheme undertaken by the concerned respondent would constitute a fresh cause of action for which relief could be claimed independently. After the above petition was disposed of, the petitioners have filed this petition for the prayers as quoted above. 8. In between, the petitioners made written representation on 25.4.1997 to the Town Development Officer of AMC. On 5.5.1997, another representation was made to the concerned Authority. It is contended that, in spite of representations made by the petitioners, the respondents have now decided to proceed further with variation of town planning scheme qua the lands of the petitioners only. As per the say of the petitioners, the AMC passed resolution bearing No. 26/97-98, dated 15.10.1997, whereby, the Municipal Commissioner is authorised to approve the draft of the varied Town Planning Scheme and to publish the same in accordance with Rule 18 of the Gujarat Town Planning and Urban Development Rules, 1979, ("Rules" for short) in anticipation of the approval of the Municipal Corporation. According to the petitioners, if the respondents are permitted to proceed with variation of scheme and if the variation is made, such variation would have legislative colour and effect under Section 65 of the Act. It is contended that such variation would not be amenable to challenge by the petitioners at that stage. 9. On behalf of respondent No.2, affidavit in reply of Shri A.M. Desai, Under Secretary, Home Department, is filed. It is not disputed that the petitioners were allotted final plots Nos. 676, 677 and 678 against plots Nos.177, 178 and 179 after coming into force of the town planning scheme No.28. It is also admitted that the said town planning scheme had become final on 4.5.1982. However, it is stated that the Home Department of the State Government had passed resolution on 6.12.1994 directing the concerned authorities to hand over the possession of final plots Nos. 676, 677 and 678, but the actual possession was not given till Special Civil Application No.5366 of 1995 was filed by the petitioners in this High Court. It is stated that, as per the order of the Division Bench of this Court in Letters Patent Appeal No.435 of 1995, after the petitioners filed undertaking on 2.1.1996, possession of final plots Nos. 676, 677 and 678 of town planning scheme No.28 was handed over to the petitioners on 29.1.1996. It is stated that the possession of final plots in question was not handed over to the petitioners because the lands comprising of these final plots were vitally needed by the Sabarmati Central Jail as the same were the lands forming part of the Central Jail Campus, and no private individuals should have access to these lands. In view of this background, the procedure for variation of scheme No.28 had started and a public notice was issued in the daily newspaper. It is stated that the AMC has published another notification in Part-II, Extraordinary Gujarat Government Gazettee, vide No.TPS/NEJ/70 on 7.1.1998, showing the varied draft scheme and pointing out that this draft scheme is kept open for public inspection. It is submitted that scheme No.28 of new Wadaj is varied under Section 78 of the Act, and, as per the provisions of Section 71 of the Act, the scheme may at any time be varied by a subsequent scheme, and the action of the appropriate authority is legal and valid. It is denied that the action to vary the scheme is mala fide to deprive the petitioners of their lands. It is submitted that final plots Nos. 676, 677 and 678 form a part of the Sabarmati Central Jail Campus and, therefore, the said lands cannot be given to any individual for security reasons of Sabarmati Central Jail, as the said plots are situated within the radius of 150 mtrs. of the open jail where the reformed prisoners are kept. 10. The Deputy Commissioner of Ahmedabad Municipal Corporation has filed affidavit in reply on behalf of respondent No. 3, inter alia, contending that the lands of final plots in question are integral part of the Sabarmati Central Prison, and, from the security point of view, it is eminently necessary to see that the lands in question remained part and parcel of the Central Prison. It is stated that on 29.1.1996 the petitioners were handed over possession of the final plots as per the order passed by the High Court in Letters Patent Appeal No.435 of 1995. It is submitted that the proposal to vary the scheme was made especially by the jail authorities with the request to allot the lands in question to the Central Prison, Sabarmati. The said proposal was examined by the Commissioner of AMC and a tentative decision was taken to place the proposal before the Town Planning Committee as well as the General Board of the AMC. Accordingly, on September 6, 1996, the Commissioner prepared a proposal and asked the Secretary of the AMC to place the said proposal for approving variation of the Scheme No.28 (Nava Vadaj) and also to consult the Town Planner, Gujarat State, before making and declaring intention as contemplated under Section 41(1) of the Act. The proposal of the Commissioner was placed before the Town Planning Committee and the same was approved vide Resolution No.72 in its meeting held on September 26, 1996. After approval of the proposal by the Town Planing Committee, the proposal for the said variation was made to the Chief Town Planner by communication dated October 22, 1996. The said proposal of the Commissioner was examined by the Chief Town Planner, Gujarat State, who gave tentative approval to the said proposal of variation vide communication dated October 24, 1996. The said proposal was also placed before the General Board of the AMC which came to be sanctioned vide Resolution No.691 in its meeting held on November 26, 1996. It is stated that the Municipal Commissioner on getting such approval prepared a detailed proposal including maps and requested the Secretary of the Corporation vide communication dated October 30, 1996 to place the said proposal before the Town Planning Committee of the Corporation for making a declaration of intention to vary the said scheme as contemplated under Section 41(2) of the Act. It is stated that the said proposal was placed before the Town Planing Committee in its meeting held on December 11, 1996 and after considering the said proposal Town Planning Committee vide its resolution No.96 declared the intention to prepare and publish the second varied town planning scheme No.28 as contemplated under Section 41(2) of the Act. It is stated that the said proposal was also approved by the General Board of AMC by its resolution No.864 in its meeting held on January 24, 1997. After following the procedure under the Act and the Rules framed thereunder, the Town Planing Committee of the AMC vide its resolution No.16, dated January 30, 1997, authorised the Commissioner to conduct the proceedings of inviting suggestions and objections from the owners and affected parties. It is stated that individual notices were served upon the owners of the lands included in the scheme, inviting objections and suggestions as well as to give them an opportunity to examine the proposals of the varied scheme themselves in the meeting which was to be held on April 25, 1997. Public notices were given in "Sandesh" and "Prabhat", daily newspapers, on April 20, 1997, inviting suggestions and objections from all concerned and further informing all the concerned about the meeting of April 25, 1997. It is stated that, after considering the said suggestions and objections, the Town Planning Committee of AMC vide its resolution No. 26, dated October 15, 1997, proposed to publish the draft town planning scheme (second varied Nava Vadaj) as contemplated under Section 41(2) of the Act read with Rule 18 of the Rules. The said resolution of the Town Planning Committee was also approved by the General Body of the AMC vide Resolution No.855, dated November 20, 1997. Accordingly, the draft town planning scheme No.28 (Nava Vadaj-second varied) has been duly published under Section 42(2) of the Act in the Government Gazettee dated January 7,1998. It is submitted that the AMC has scrupulously followed the procedure as prescribed under the Act and the Rules and, therefore, the averments made in the petition are baseless. It is further submitted that the resolution to vary the scheme has been passed on the basis of the need and exigencies by following the procedure of the Act and the Rules. It is submitted that the Corporation is the Appropriate Authority under the Act and, therefore, after declaring the intention to prepare the scheme, it has to follow the procedure as laid down under the Act and the Rules. It is submitted that as per the provisions of Section 28 of the Act, the draft town planing scheme so prepared by the AMC is to be submitted to the State Government for its sanction. It is submitted that the present petition is premature inasmuch as that still the town planning scheme is at the stage of draft town planning scheme and even the said draft town planning scheme is to be approved and sanctioned by the State Government. It is submitted that, after the draft town planning scheme is sanctioned by the State Government, the Town Planning Officer, as contemplated under Section 50 of the Act, shall be appointed and the petitioners would be heard by the Town Planning Officer as provided under Section 52 of the Act read with Rule 26 of the Rules. Therefore, it is submitted that the petitioners will have a right to be heard even by the State Government if any objections are raised by the petitioners before the scheme is sanctioned under Section 65 of the Act. It is stated that the scheme is at its primary and primitive stage and, therefore, the present petition is premature. It is denied t.R fide purpose as alleged by the petitioners. It is denied that the proposed scheme is ultra vires Articles 14, 19 and 300-A of the Constitution of India. Lastly, it is submitted that the powers delegated under Section 71 of the Act have been legally and lawfully exercised by the Corporation. 11. Mr. A.J. Patel, learned counsel for the petitioners has raised the following contentions against variation of town planning scheme No.28. (i) The provisions of Section 71 of the Act are ultra vires Articles 14, 19 and 300-A of the Constitution of India, as the Town Planning Scheme is sought to be varied at the behest of the Government, with the sole purpose of taking away the lands of the petitioners. (ii) The AMC has R become final as far as back as in 1982. (iii)The AMC has varied the scheme for the benefit of the State Government in mala fide exercise of power. If the lands are required for the Jail Complex, the same can be acquired under the provisions of the Land Acquisition Act and, therefore also, variance at the instance of the Government amounts to arbitrary and colourable exercise of power. 12. On behalf of the respondents, Mr. S.N. Shelat, learned Additional Advocate General, has argued that the appropriate authority, i.e., AMC, has power to vary the scheme under Section 71 of the Act. As the land of final plots Nos. 676, 677, and 678 are situated adjacent to the jail complex, there is danger to the security of the open jail, where reformed prisoners are lodged. It is submitted that Section 71 of the Act is not ultra vires Articles 14, 19 and 300-A of the Constitution of India and the said Section was already held to be intra-vires by the judgment of the Division Bench of this Court in the case of Bhupendrakumar Ramanlal Shah vs. State of Gujarat. reported in 1995 (2) GLR 1721. It is argued that originally the land in question belonged to the jail authority and while varying the scheme the lands are reallotted to the said authority. The learned Additional Advocate General has further submitted that the petitioners are allotted land of final plot No.683 in the same area situated on the main road. It is further submitted that the appropriate authority has scrupulously followed the procedure as provided under the Act to vary the scheme. It is, lastly, submitted that the petition is premature as the varied draft scheme is at the primitive stage and, therefore, the petition deserves to be rejected. 13. In making a town planning scheme under the Act, the lands of all persons covered by the scheme are treated as if they are put in a pool. The Town Planning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public purposes. Reconstituted plots are allotted to the landholder. The reconstituted plots having regard to the exigencies of the scheme need not be of the same dimensions as the original land. Their shape and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Town Planing Officer may lay out new roads, divert or close existing roads, reserve lands for recreation grounds, schools, markets, green belts and similar public purposes, and provide for drainage, lighting, water-supply, filling up or reclamation of low-lying, swamp or unhealthy areas or levelling up of land so that the total area included in the scheme may conduce to the health and well-being of the residents. Since the town planning scheme is intended to improve the sanitary conditions prevailing in a locality, the owners of plots are required to maintain land open around their buildings. The object of the scheme being to provide amenities for the benefit of the residents generally, the area in the occupation of the individual holders of land is generally reduced, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community. 14. The re-arrangement of titles in the various plots and reservation of land for public purposes require financial adjustments to be made. The owner who is deprived of his land has to be compensated, and the owner who obtains a re-constituted plot in surroundings which are conducive to better sanitary living conditions has to contribute towards the expenses of the scheme. This is because on the making of a town planning scheme, the value of the plot rises and a part of the benefit which arises out of the unearned rise in prices is directed to be contributed towards financing of the scheme which enables the residents in that area to more amenities, better facilities, and healthier living conditions. The provisions relating to payment of compensation and recovery of contribution are vital to the successful implementation of the scheme. The owner of the reconstituted plot who gets the benefit of the scheme must make contribution towards the expenses of the scheme. The owner who loses his property must similarly be compensated. For the purpose of determining the compensation, the Legislature has adopted the basis of market value of the land expropriated, but the land is valued not on the date of extinction of the owner's interest, but on the date of the declaration of intention to make the scheme. 15. The provisions of the Bombay Town Planning Act, 1954 are similar to the provisions of the Gujarat Town Planning & Urban Development Act, 1976. Section 56 of the Bombay Act is in pari-materia with Section 70 of the Gujarat Act. Both the sections deal with power to vary scheme on ground of error, irregularity or informality. Section 57 of the Bombay Act is with regard to power to vary or revoke town planning scheme. The corresponding provision in the Gujarat Act is Section 71. -------------------------------------------------------- Section 57 of the Bombay Section 71 of the Gujarat Act Act --------------------------------------------------------- Notwithstanding anything Notwithstanding anything contained in section contained in section 56 a town planning 70, a town planning scheme may at any scheme may at any time be varied or time be varied, a revoked by a subse- subsequent scheme made, quent scheme made, published and sanctioned published and sanc- in accordance with the tioned in accordan- provisions of the Act. ce with the Act. (2) The State Government (i) on the application of the local authority, or (ii) of its own motion, after making such inquiry as it deems fit and after giving the local authority an opportunity to be heard, may at any time by notifi- cation in the Official Gazette, revoke a town planning scheme, if it is satisfied that under the special circum- stances of the case the scheme should be so revoked. ------------------------------------------------------ 16. Before the Supreme Court, in the case of Maneklal Chhotalal and others vs. M.G. Makwana and others, reported in AIR 1967 Supreme Court, 1373, constitutional validity of the Bombay Town Planning Act, 1954, was challenged on the ground that certain provisions of the said Act infringe the fundamental rights under Articles 14 and 19 of the Constitution of India. The Supreme Court, after considering the object and various provisions of the said Act, held, in paragraphs 46 and 47, as under: "The principles to