Khodidas Shivlal Patel (Korat) vs State Of Gujarat

Sandeep N. Bhatt, J

This petition is filed with the following prayers: “49(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent authorities to provide copies of documents and details demanded by petitioner and give opportunity of personal hearing to petitioner and thereafter pass detailed reasoned order dealing with objections of petitioner dated 25.2.2022 and 9.5.2022 made to all the respondents as held by this Hon’ble Court in SCA No.16983/2021 exercising powers of Civil court under Sec.76 of The Gujarat Town Planning and Urban Development Act, 1976 before forwarding Preliminary T.P.Scheme No.25(Vavdi) to the Government for sanction in the interest of justice.

(B) Pending admission, hearing and final disposal of the above Special Civil Application, to restrain the respondents from implementing the Draft T.P.Scheme No.25 (Vavdi) insofar as the same concerns the land of petitioner.

(C) Pending admission, hearing and final disposal of the above Special Civil Application, to restrain the respondents from sanctioning Preliminary T.P.Scheme No.25 (Vavdi) Rajkot that may be submitted by respondent no.4 without providing copies of documents and details demanded by petitioner and giving opportunity of personal hearing to petitioner and thereafter pass detailed reasoned order dealing with objections of petitioner dated 25.2.2022 and 9.5.2022 made to all the respondents before submitting Preliminary T.P.Scheme No.25 (Vavdi) Rajkot in the interest of justice.

(D) xxxx”

Heard learned advocate Mr.Thacker for the petitioner and learned AGP Ms.Bhatt for the respondents-state authorities.

Learned advocate Mr.Thacker submits that this petition be disposed off with a direction to the respondent nos.2 and 4 for deciding the representation/objections dated 25.2.2022 and 9.5.2022 made to the respondents exercising the powers of Civil Court under Section 76 of the Gujarat Town Planning Act before forwarding Preliminary T.P.Scheme No.25 (Vavdi) Rajkot. Learned advocate has placed reliance on the order 4.4.2022 passed in Special Civil Application Nos.6505 of 2022 and allied matters and order dated 26.8.2022 passed in Special Civil Application No.14642 of 2022.

As against that, learned AGP Ms.Bhatt submits that in view of the decision in the case of Ahmedabad Municipal Corporation And Another V/s Ahmedabad Green Belt Khedut Mandal and Others, reported in (2014)7 SCC 357, more particularly, paragraphs 59 and 60 which read as under, the petitioner has to approach the Chief Town Planning Officer with a representation for redressal of his grievances.

“59. On the contrary, Shri Preetesh Kapur appearing for the respondents has submitted that it is pre-mature to challenge the resolution dated 16.5.2008 as it is a first step to initiate the proceedings under the Act and the Rules. The draft scheme issued under Section 48 of the Act 1976 empowers the State Government to sanction a draft scheme and clause (3) thereof provides that if the State Government sanctions the scheme, a notification shall be issued stating at what place and time the draft scheme shall be open for the inspection of the public after which the procedure prescribed under Sections 50 and 51 would be followed. At that stage Rule 26 which provides that for the purpose of preparing the preliminary scheme and final scheme, the Town Planning Officer shall give notice in Form 'H' of the date on which he will commence his duties and shall state the time as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a scheme would be entitled under Section 82 to make a claim before him. Such notice should be published in the official gazette also and the law further requires the filing of the objections and the personal hearing to such person who would be adversely affected.

In the instant transferred Case, as the authority is only dealing with the issues at a draft stage and the applicants have ample opportunity to file their objections and are entitled to personal hearing as required under Rule 26, clause (4), the matter can be adjudicated before the statutory authority. Therefore, in view of the above, we are of the considered opinion that the apprehensions raised by the applicants at this stage are pre-mature. Admittedly, the applicants have filed their objections raising their grievance and they had also been given the personal hearing by the statutory authorities on all permissible, factual and legal grounds. The learned counsel appearing for the State/Authorities has submitted that in case the applicants are not satisfied and make fresh objections within 30 days from today, they would be provided a fresh opportunity of hearing. However, it is too early to anticipate as what order would be passed on their objections. In case, they are aggrieved by the order passed after hearing their objections, they have a statutory right to approach the appropriate forum challenging the same.”

Considering the submissions canvassed by the parties, this petition is disposed off with a direction to respondent nos.2 and 4 to decide the representation/objections dated 25.2.2022 and 9.5.2022 raised by the petitioner by providing opportunity of hearing to the petitioner and pass a reasoned order, as expeditiously as possible, in accordance with law. Direct service is permitted.