IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 14953 of 2003 with SPECIAL CIVIL APPLICATION No 15048 of 2003 with Special Civil Application No. 15059 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE M.R. SHAH ======================================================== 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? --------------------------------------------------------- SHIVJIBHAI LADHABHAI SORATHIYA Versus STATE OF GUJARAT --------------------------------------------------------- Appearance: 1. Special Civil Application No. 14953 of 2003 MR NV ANJARIA for Petitioner No. 1-7 Mr. S.N. Shelat, Advocate General with Ms. Maithili Mehta, AGP for Respondent No. 1 MR NIKHILESH J SHAH for Respondent No. 2 NOTICE SERVED BY DS for Respondent No. 3-4 ----------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.R. SHAH Date of decision: 17/03/2005 ORAL COMMON JUDGEMENT As common question of law and facts arise in all the 3 matters, these petitions are being disposed of by this common order. 2. In all these petitions, respective petitioners had originally prayed for an appropriate writ, direction or order permanently restraining the respondent Area Development Authority not to proceed and to take any forcible action and to take possession of residential units belonging to the petitioner situate in Ward No.8 in Sorathiya Naka area, Anjar-Kutch and to restrain them permanently from implementing the Town Planning Scheme No.4 qua the said residential premises of the petitioner. It is also further prayed to declare Town Planning Scheme No.4 framed for the town of Anjar as ultra vires and violative of Articles 14 and 16 of the Constitution of India in so far as it relates to the residential properties belonging to the petitioners. After the matter was heard at length in the course of arguments the learned advocate appearing on behalf of the petitioners had submitted draft amendment. It is also prayed to declare the petitioners as lessee occupants of the properties occupied by them in City Survey No. 3648 in Ward No.8 in Town Planning No.4 in the area known as Sorathiya Naka in capacity of owners of superstructures/buildings/houses thereto and are entitled to allotment of final plot and payment of compensation under town planning Act, and further that they are the holders of property entitled to be treated as so entitled under the provisions of the Gujarat Town Planning and Urban Development Act, 1976. [hereinafter referred to as the "Act"]. A further prayer is also sought for to require the respondents herein to propose appropriate variation in the T.P. Scheme No.4 in so far as it relates to the properties bearing Municipal Nos. 154, 154/1 to 154/6 occupied by them in the land bearing City Survey No. 3648 in Ward No.8 in T.P. Scheme No.4 in the area known as Sorathiya Naka Area, Anjar-Kachchh so as to recognize the rights of the petitioners as owners-occupiers under the said Act. 3. It is required to be noted that the Special Civil Applications were filed in the year 2003 and the Draft Amendment is proposed in the month of March 2005, more particularly when the petitions are heard at length for a considerable time and during the midst of the argument the amendment is proposed. Under the circumstances, the prayer of the petitioners to amend the present Special Civil Applications, which is proposed as stated hereinabove, deserves rejection on the following grounds; (i) The Draft Amendment is not on Affidavit; (ii) The amendment is sought after the matter was partly heard at length, and during the course of the argument the amendment is submitted; (iii) Copy of the Draft Amendment is also not given to the learned advocate appearing for the respondents; (iv) Amendment is sought after a period of 2 years and as stated hereinabove after the matter is partly heard at length it is submitted at a belated stage during the midst of arguments; and (v) If the amendment which is sought for is granted, the entire complexion and the nature of the petition is likely to be changed as altogether new prayers are sought. However, in view of the fact that the learned advocate appearing on behalf of the petitioners had argued all the aforesaid points in support of his prayers the Draft Amendment is allowed. 4. It is the case of the petitioners of Special Civil Application No. 14953 of 2003 that ancestral property of father of the petitioner No.1, i.e., Ladhabhai Valabhai situate in Ward No.8 of town of Anjar comprised in the residential houses constructed on the land bearing Survey No. 3648 admeasuring 455.14 sq.mtrs. owned by him and the land admeasuring about 710 sq.mtrs. occupied in the capacity of lessee of respondent No.4, i.e., Anjar Municipality under a lease lawfully granted before 25 years and on these lines, residential houses bearing Municipal Property No. 152, 152/1 and 154/22 were situate and that the said residential properties were occupied by the respective family members and they had been residing there. It is the case of the petitioners as regards the lands under lease that the lease was granted by the respondent No.4 Anjar Municipality and that they have put up superstructure upon the said land. The property bearing Municipal No. 152 is a separate municipal house and Municipal Nos. 154/9 to 154/14 are six different residential units which are subject matters of present Special Civil Applications. It is the case of the petitioners that the said units are occupied by the petitioners no. 2 to 9 respectively. 5. It is the case of petitioners of Special Civil Application No. 15048 of 2003 that petitioners No. 2 to 8 are in occupation and possession of residential units bearing Municipal Properties No. 154/1 to 154/6. The land upon which the superstructure of aforesaid residential units is there was leased by the respondent No.4 Anjar Municipality in favour of favour of petitioner No.1. 6. It is the case of petitioners of Special Civil Application No. 15059 of 2003 that similarly the petitioners No. 2 to 12 were in occupation and possession of the residential units bearing Municipal Properties No. 152/1 to 154/7, 154/8, 154/15 to 154/22 and that the said residential units were on the land owned by the respondent No.4 Municipality and leased in favour of father of petitioner No.1. It is the case of the petitioners that the petitioners have constructed superstructures upon the land leased by the respondent No.4 Municipality and thus they are owners of the superstructures. 7. Thus it is the contention on behalf of the respective petitioners that petitioner No.1/respective petitioners were the lessees of the land belonging to and owned by respondent No.4 Anjar Municipality upon which they have put up superstructures and as such owners of the superstructures. 8. It is the case of petitioners of Special Civil Application No. 14953 of 2003 that in the Earthquake of 26th January 2001 the aforesaid residential properties bearing Municipal Nos. 154/6 to 154/14 suffered damages; the petitioner No.1 addressed the letter dated 22.5.2001 to the Mamlatdar requesting him to do survey of houses in view of the fact that some of the occupant petitioners who were staying there had left on account of Earthquake; that their names were required to be considered as occupiers; and that the competent authority has classified the said residential properties in G-4 category. It is the case of the petitioners that G-4 category denotes that the property can be rectified and after strengthening repair work they are entitled to compensation for damage of their property as per policy of the State Government; for which the petitioners had applied and they received 1st instalment; that after adding some amount they undertook repairs of the residence which are now fit for rehabilitation; and they are residing there. It is the case of the petitioners that subsequently by letter dated 18.11.2001 and by letter dated 7.1.2002 the respective petitioners have applied for getting 2nd and 3rd installments of compensation. It is the case of petitioners that petitioner No.1 is the lawful owner and rest of the petitioners are family members and occupiers of the said properties. It is the case of the petitioners that in the post-Earthquake rehabilitation planning the State authorities invoked the provisions of the Act and their aforesaid properties became subject matter of Town Planning Scheme No.4 framed for the City of Anjar. It is the case of petitioners that petitioner No.1 is the owner within the meaning of Section 2(xviii) and other petitioners are occupiers within the meaning of Section 2(xvi) of the Act. 9. It is the case of petitioners of Special Civil Application No. 15048 of 2003 and Special Civil Application No. 15059 of 2003 that in the Earthquake of 26th January 2001, the residential properties occupied by them also suffered damages; petitioner No.1 addressed a letter to the Mamlatdar requesting him to do survey of houses in view of the fact that some of the occupant petitioners staying there had left on account of Earthquake; that their names were required to be considered on record as occupiers; thereafter the competent authority has classified the said residential properties in G-5 category; accordingly all the residential units have been grounded; land is an open land; and each of the occupant petitioners had shifted their residence and they are staying elsewhere. It is the case of the petitioners that as occupants of properties each of them has applied for compensation but they have not received any compensation. It is the case of petitioners that in post-Earthquake Rehabilitation Planning the respondent State authorities had invoked provisions of the Act and their aforesaid properties became subject matter of Town Planning Scheme No.4 framed in the city of Anjar. 10. It is the common contention and submission on behalf of the petitioners of all the three Special Civil Applications that neither the petitioner No.1 or any other petitioner had received any notice at any point of time under the Gujarat Town Planning Act and the Rules to the effect that their properties were subjected to town planning and in what manner. However, since the other property was subjected to Town Planning Scheme No.4 and when the Maps were notified having sensed that their aforesaid properties may also be adversely affected the petitioner No.1 lodged his own objections and on behalf of occupiers and all family members by two letters dated 5.6.2002 addressed to respondent No.2 authority and the authority never responded inspite of the objections concerning Municipal property occupied by the respective petitioners by way of residential units on the land which was leased by the respondent No.4 Anjar Municipality and the petitioner was called personally to submit objection in respect of other property bearing City Survey No. 3648 which was owned by him and which was also falling in the said Town Planning Scheme No.4, and again on 7th September 2002 the petitioner No.1 submitted objections about the abovesaid properties and making the grievance that no notice of whatsoever nature was given in respect thereof. It is the case of the petitioners that the petitioners were not aware anything about the proposals of the Town Planning Scheme qua their properties until recently the servants and officers of the respondent threatened the petitioners for dispossession and/or demolition of their superstructures to implement the Town Planning Scheme No.4, the petitioners preferred the present Special Civil Applications for the aforesaid reliefs. 11. Shri NV Anjaria, learned advocate appeared on behalf of the petitioners. Shri Anjaria had submitted that though the petitioners are the occupiers and owners of the superstructures erected on the land which is going under six metres wide town planning road no notices have been issued upon the petitioners before implementing and finalising the Town Planning Scheme as required under Section 52 of the Act read with Rule 26 of the Gujarat Town Planning Rules {hereinafter referred to as "the Rules"}. It is also further submitted that as the petitioners are owners of the superstructure upon the land and the petitioners are the lessees the petitioners are entitled to the land as owners of the land which is required to be given under the provisions of the Act and/or the petitioners are entitled to compensation for the superstructures. Relying upon provisions of Section 2 sub-section (xii), Section 2 sub-section (xiii), Section 2 sub-section (xvi), sub-section (xviii) of Section 2, and sub-section (xix) of Section 2, it is the contention on behalf of the petitioners that as they are the owners of superstructures they are to be treated as owners of the land; and whenever there is a reference to owner of the land in the Act and the Rules either for the purpose of giving notice considering objections, for giving compensation and/or giving alternative land in lieu of the land which is going under the six feet wide road under the finalised town planning scheme the petitioners' rights are to be recognised and the petitioners are to be treated as owners of the land and petitioners are entitled to all such rights which are accruing in favour of owner of the land wherever there is a reference to the owner of the land in the Act. Sub-section (xii) of Section 2, sub-section (xiii) of Section 2, sub-section (xvi) of Section 2, sub-section (xviii) of Section 2, and sub-section (xix) of Section 2, read as under; (xii) "final plot" means a plot reconstituted from an original plot and allotted in a town planning scheme as a final plot; (xiii) "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth; (xvi) "occupier" includes,__ (a) any person who for the time being is paying or is liable to pay to the owner the rent of the land or building in respect of which such rent is paid or is payable; (b) an owner living in or otherwise using his land or building; (c) a rent free tenant; (d) a licencee in occupation of any land or building; (e) any person who is liable to pay to the owner damages or compensation for the use and occupation of any land or building; (xviii) "owner" in relation to any property, includes any person who is, for the time being receiving or entitled to receive, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as an agent, trustee, guardian, manager or receiver for any other person or for any religious or charitable institution, the rents or profits of the property; and also includes a mortgagee in possession thereof; (xix) "plot" means a portion of land held in one ownership and numbered and shown as one plot in a town planning scheme. Relying upon the aforesaid Sections, more particularly sub-section (xiii) of Section 2, which defines "land" which includes benefits arise out of land and the things attached to the Earth or permanently fastened to anything attached to the Earth, the learned advocate for the petitioners has submitted that as the superstructures on the land are attached to the Earth the same be treated as land and therefore as owner of superstructures the petitioners are to be treated as owners of the land for the purposes of the Act. It is therefore submitted that as the petitioners are not given any notices to represent their case or to submit their objections which is required under Section 52 of the "Act" read with Rule 26 of the "Rules" the town planning scheme as such is bad in law and therefore the action of the respondents in issuing notices upon the petitioners directing the petitioners to hand over possession of the land which is going under six metres wide town planning road requires to be quashed and set aside. 12. Shri Anjaria, learned advocate appearing for the petitioners has further submitted that as per the Final Town Planning Scheme for the purpose of implementation of the Town Planning Scheme No.4 the superstructure of the petitioners are likely to be demolished and therefore they will be affected by the scheme and therefore they were required to be given special or individual notices as required under Section 52 of the Act read with Rule 26. For that purpose, Shri Anjaria has relied upon the Judgment of the Hon'ble Supreme Court in the case of Jaswantsingh Mathurasingh Vs. Ahmedabad Municipal Corporation, reported in 1992 Supplementary (1) SCC Page 5. Relying upon the said judgment the learned advocate appearing for the petitioners had also submitted that as directed by the Hon'ble Supreme Court in the aforesaid decision even the tenants who were likely to be affected due to the scheme and their shops were likely to be demolished are entitled to alternative suitable shops. 12.1 Relying upon the Judgment of the Assam High Court in the case of Niresh Chandra Das-Judgment Debtor, Appellant Vs. Paresh Chandra Routh, Decree-holder, Respondent, reported in AIR 1959 Assam 61, the learned advocate appearing for the petitioners has submitted that right of a tenant to remain in possession is held to be saleable property and therefore the petitioners are entitled to alternative plot as the petitioners would be deprived of their right to remain in possession as tenants. 13. An affidavit-in-reply is filed on behalf of the respondent No.2, Area Development Authority. It is submitted that the Area Development Authority followed the procedure as laid down under the Act for the town planning scheme at Anjar and the preliminary town planning scheme has already been sanctioned by the State Government on 21.1.2003 and therefore as per the provisions of Section 67 of the Act all the lands required by the appropriate authority shall vest absolutely in the appropriate authority free from all encumbrances and all the rights in the original plots which have been reconstituted in the final plots shall be determined by the Town Planning Officer. It is also further submitted that as such no malafides are alleged and there is no malafide intention on the part of Area Development Authority in preparing the Town Planning Scheme. It is submitted that there has been vast destruction of human life and property in the area due to devastating Earthquake on 26.1.2001 due to which people were buried in debris of the buildings and of narrow streets, and after the Earthquake the Government and NGOs had immediately started rescue operation, but due to narrow streets Government machinery could not reach through the streets to work in the city and start rescue operation in time, as a result whereof many people lost their lives. Therefore the Government decided to constitute a Special Planning Committee for the affected walled areas of Bhuj, Anjar, Bachhau and Rapar under the Act. It is also further submitted that the Town Planning Act came to be amended and as per the amended Town Planning Act which was amended by Notification dated 9.5.2001 the Anjar Area Development Authority came to be constituted and as required under Section 41(1) of the Act the Area Development Authority consulted the Chief Town Planner before the declaration of the intention and after consulting the Chief Town Planner vide Resolution dated 3.5.2002 of the Area Development Authority the declaration of intention to prepare town planning scheme No.1 to 4 came to be declared and the said declaration of intention was published in the Gujarat Government Extraordinary Gazette dated 4.5.2002 as required under Rule 16(1) of the Rules. It is also further submitted that the declaration of intention to prepare Town Planning Scheme No. 1 to 4 was published in local newspaper dated 19.5.2002 as required under Rule 16(5) of the Rules and the said advertisement was also pasted in the public places conspicuous within the area of town planning scheme and at the head office of the Area Development Authority as required under Rules 16(1). It is also further submitted that as required under Rule 16(2) of the Rules an announcement was made in the advertisement published in the aforesaid newspaper that a copy of plan of the area of Draft Town Planning Scheme will be kept open at Area Development Authority's office. It is further submitted that as required under Section 41(2) of the Act copy of the advertisement publishing declaration of intention was despatched to the State Government along with the plan as referred to in the said Section. It is also further submitted that individual notices as well as public notices were given for owners meeting as per Rule 17 and accordingly the owners meeting was held on 23.5.2002 and tentative proposals of Draft Town Planning Scheme was explained to the owner of the land with the help of Map and on computer screen, and suggestions and objections were invited from the land owners and considering the suggestions and objections received by the Area Development Authority the plan was modified and accordingly by resolution dated 14.6.2002 a draft Town Planning Scheme was made by the Area Development Authority as required under Section 42(1) of the Act. It is also further submitted that as required under Section 42(1) of the Act and Rule 18(1) of the Rules the draft Town Planning Scheme was published in the Government Gazette on 27.5.2002 and in the local newspaper on 25.5.2002. It is further submitted that an announcement was made as required under Rule 18(1) in the aforesaid advertisement that the scheme would be kept open for public inspection at Head Office of Area Development Authority and the same was kept open at the said office. It is also further submitted that by the Amended Act of 2002 a Proviso came to be added to Section 47 of the Act whereby the time period for receiving suggestions/objections came to be reduced from one month to 15 days with a view to ensure time bound programme of rehabilitation; suggestions/objections were invited by giving 15 days' time and thereafter by resolution dated 28.6.2002 suggestions/objections received were considered as required under Section 47 of the Act and Draft Town Planning Scheme was modified accordingly and the draft town planning scheme was submitted to the State Government as required under Section 48(1) of the Act along with modifications and suggestions received by the Area Development Authority for its sanction; the draft town planning scheme came to be sanctioned by the State Government vide notification dated 17.7.2002; and thereafter as required under Section 50 of the Act Town Planning Officer came to be appointed by the State Government to finalise the Draft Town Planning Scheme and to submit a Preliminary Town Planning Scheme to the State Government for its sanction. It is also further submitted that thereafter the State Government has accorded sanction to the Preliminary Town Planning Scheme vide notification dated 21.1.2003. Thus, the Town Planning Scheme has come into force with effect from 21.1.2003. It is further submitted that as contemplated under Section 67 of the Act all lands vest absolutely in the Area Development Authority free from all encumbrances with effect from 21.1.2003 and therefore the notice under Section 67 of the Act for vesting of the land in Area Development Authority was given to the petitioners, and in addition to that the information about vesting of the land in the Area Development Authority was widely published vide public notice in the local newspapers on 9.2.2003 and 14.2.2003 respectively and also on telephone and cable network. It is further submitted that as required under Section 68 of the Act and Rule 33(1)(a), notice came to be issued upon the petitioners for vacating the land and handing over possession of the land which is required for 6 metres wide road under final Town Planning Scheme to the Area Development Authority which is the subject matter of the present Special