LPA/60120/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 601 of 2007 In SPECIAL CIVIL APPLICATION No. 9840 of 2006 With CIVIL APPLICATION No. 6250 of 2007 In LETTERS PATENT APPEAL No. 601 of 2007 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN HONOURABLE MR.JUSTICE AKIL KURESHI ========================================= 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 ? ========================================= ASHWIN ISHWARLAL MODI (DUMMASWALA) - Appellant(s) Versus SURAT MUNICIPAL CORPORATION & 11 - Respondent(s) ======================================== Appearance : MR MC BHATT for Appellant(s) : 1, 1.2.1, 1.2.2,1.2.3 MR PRASHANT G DESAI SR ADVOCATE WITH MR KAUSHAL PANDYA for Respondent(s) : 1,3 - 4. MS ML SHAH,AGP for Respondent(s) : 2, MR KK TRIVEDI for Respondent(s) : 5 - 9. NOTICE SERVED BY DS for Respondent(s) : 10 - 12. ========================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and LPA/60120/2007 2/5 JUDGMENT HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28 /11/2008 CAV JUDGMENT (Per : HONOURABLE JUSTICE MR. AKIL KURESHI) 1. The appellants are the original petitioners who had filed Special Civil Application No.9840/2006 challenging Government notification dated 27.9.2005 and another notification dated 9.3.2006. Issue pertains to Final Plot No. 89 of Town Planning Scheme No.17 of Surat(Fulpada). 2. The authority had prepared the draft Town Planning scheme. In lieu of the land held by the petitioners, Final Plot No.89 was to be allotted. Against area of 1293 sq mtrs of original plot, as per the preliminary scheme submitted to the Government for its sanction, the petitioners were to be allotted Final Plot No. 89 admeasuring 858 sq. mtrs. The sanctioned preliminary scheme however, allotted Final Plot No.89 to the petitioners admeasuring 1019 sq mtrs. There was proportionate reduction in the Final Plot Nos. 90 and 91 owned and possessed by private respondents. 3. Since this modification was without hearing the said concerned persons, they had approached this Court by filing Special Civil Application No. 8049/2003 which came to be disposed of by order dated 22.7.2004 in which Learned Single Judge recorded that the petitioners therein had submitted representation to the State Government on 3.6.2003 which was pending before the Government and the Government was directed to take a decision under Section 70 or Section 71 of the Gujarat Town Planning and Urban Development Act (“the Act” for short) on the representation LPA/60120/2007 3/5 JUDGMENT of the said petitioners. 4. It appears that eventually by impugned notifications, the State Government varied the Town Planning Scheme by virtue of which Final Plot No. 89 assigned to the petitioners was reduced to an area of 858 sq. mtrs. as originally proposed. There was corresponding increase in the area of Final Plots No. 90 and 91. The petitioners therefore, challenged the said notifications before the Learned Single Judge by filing Special Civil Application No.9840/2006. 5. Learned Single Judge by his impugned order dated 16.11.2006 dismissed the petition observing that powers exercised by the authority cannot be stated to be arbitrary or beyond the scope and ambit of Section 70 of the Act. Learned Judge also observed that in a matter of Town Planning Scheme which is sanctioned and made part of the Act, judicial scrutiny, would not be extended to examine whether distribution is proper or improper. Learned Judge observed that in the proposed preliminary scheme, area of final plot no. 89 was shown to be 858 sq. mtrs. to which the petitioners had not raised any objections. 6. Appearing for the appellants, learned advocate Shri M.C. Bhatt vehemently submitted that the appellant-petitioners had objected to variation proposed by the authorities which was not taken into consideration by the Principal Secretary before taking final decision. He submitted that the powers of varying the Town Planning Scheme could not have been exercised in facts of the present case. He submitted that the authorities had favoured the owners of plots No. 90 and 91. LPA/60120/2007 4/5 JUDGMENT 7. On the other hand, learned advocate Shri P.G. Desai for the Corporation, Ms. M.L. Shah for the State and Shri K.K. Trivedi for concerned private respondents opposed the appeal and supported the decision of the Learned Single Judge. 8. In the present case, it is not in dispute that before affecting variation in the Town Planning Scheme, pursuant to the representation of respondents No. 5 to 9 and the order of the Learned Single Judge dated 22.7.2004 passed in Special Civil Application No. 8049/2003, authority had invited objections and suggestions from the affected parties. Admittedly, within the statutory period as specified in the Notification inviting objections and suggestions, no objections were raised by the petitioners i.e. present appellants. Even initially when the proposal was to allot final plot No. 89 of 858 sq. mtrs., the petitioners had raised no grievance about such a proposal. Eventually, without hearing, respondents No. 5 to 9 herein the area of final plot Nos. 90 and 91 alloted to them was reduced while sanctioning the preliminary Town Planning Scheme and the plot size of the petitioner namely final plot No. 89 was increased from 858 sq. mtrs. to 1019 sq. mtrs. As noted said respondents had approached this Court by filing Special Civil Application No. 8049/2003 in which directions were issued to consider the representation for varying the Town Planning Scheme. It was pursuant to such a direction that the Town Planing Scheme came to be varied which variation has been sanctioned by the Government and has become part of the Act. 9. We see no reason to interfere with the decision of the Learned Single Judge, particularly, when the appellants herein had raised no objections about the proposal of allotment of final plot No.89 of LPA/60120/2007 5/5 JUDGMENT 858 sq mtrs. in the draft town planning scheme and thereafter, also before the Government ordered variation of the preliminary town planning scheme, the appellants had not raised any objections within the statutory period, despite sufficient opportunity being granted to raise objections. 10.Learned advocate for the appellants however, contended that the objections of the appellants were on record before the final notifications were issued. That may be so. However, from the affidavit in reply filed by Senior Town Planner, it can be seen that such objections were submitted on 9.1.2006 by which time the decision to vary the Town Planning Scheme was already taken. Issuance of notifications was thereafter only subsequent steps taken by the authorities. 11.Considering all these aspects of the matter, we see no reason to interfere. Appeal is therefore, dismissed 12.In view of order passed in Appeal, Civil Application does not survive. Same is also dismissed. (K.S.RADHAKRISHNAN,C.J.) (AKIL KURESHI,J.) At this stage, learned advocate for the appellants requested for stay granted earlier by this Court to be continued for a period of 8 weeks. Request is refused. (K.S.RADHAKRISHNAN,C.J.) (AKIL KURESHI,J.) (raghu)