M.R. Shah, J.@mdashAs common questions of law and facts arise in the present group of petitions, these Special Civil Applications are being disposed of by this common order. As such the Special Civil Applications No. 18260 of 2003 and 18261 of 2003 are filed by the petitioners who are petitioners No. 2 and 4 of Special Civil Application No. 14579 of 2003 and they have filed separate one page petitions, being Special Civil Applications No. 18260 and 18261 of 2003. Special Civil Application No. 14579 of 2003 be treated as main Special Civil Application.
2. In the present Special Civil Application under Article 226 of the Constitution of India, the respective petitioners have prayed for an appropriate writ, direction or order permanently restraining the respondents No. 1 and 2, i.e., Secretary, Department of Town Planning and Urban Development, State of Gujarat, and Anjar Area Development Authority from acting upon the notices dated 2/3-10-2003 which are at Annexure ''K'' to the petition by which the petitioners are called upon to vacate from the land which is occupied by them as the same is part of a six metre wide road under the Town Planning Scheme No. 4 which has become final under the provisions of The Gujarat Town Planning and Urban Development Act, 1976 [hereinafter referred to as "the Act"].
3. During the course of hearing of the present Special Civil Applications, and after learned advocate appearing for the petitioners was heard at length for a considerable time, the learned advocate appearing for the petitioners had submitted Draft Amendment and requested to allow them to amend the main Special Civil Application by adding Paras 6.5, 6.6 and prayer clause in terms of Paras 10AA and 10BB by which now the petitioners have prayed for a declaration that they are lessees and occupants of the properties bearing Municipal Nos. 9/913, 9/915, 916, 9/912 and 9/911 and in occupation of the land in Ward No. 9 in the area known as Sarsar Gate Area, Anjar, Kutch under the Town Planning Scheme concerned in capacity of owners of the structures/buildings/shops thereon and are entitled to allotment of final plot and payment of compensation under the town planning scheme and that they are the holders of the property entitled to be treated as so entitled under the provisions of the Act and a further prayer is sought for requiring the respondents to propose appropriate variation in the town planning scheme insofar as it relates to properties in question so as to recognise the rights of the petitioners as owners or occupiers under the Act.
4. It is the case of petitioner No. 1 that he is the lessee of the land occupied by him of respondent No. 3, Anjar Municipality of 336 sq.ft. since 1980 and he has constructed superstructure on the land in question which has been given Municipal Property No. 9/913.
4.1. It is the case of petitioner No. 2 of Special Civil Application No. 14579 of 2003 and petitioner of Special Civil Application No. 18260 of 2003 that he is the lessee of respondent No. 3 Municipality of the land admeasuring 20 x 30 ft. since many years and he has put up superstructures which are given Municipal Nos. 9/915 and 9/916.
4.2. It is the case of petitioner No. 3, Lalji Balji Soratia that he is the lessee of respondent No. 3 Anjar Municipality of the land upon which he has put up superstructure which bears Municipal No. 9/912.
4.3. It is the case of petitioner No. 4 of Special Civil Application No. 14579 of 2003 and petitioner of Special Civil Application No. 18261 of 2003 that she is the lessee of the land occupied by her of respondent No. 3 Anjar Municipality and that upon which she has put up shop admeasuring 24 x 14 feet and is running a flour mill which bears Municipal No. 9/911.
4.4. Thus, it is the case of the respective petitioners and contention on behalf of the petitioners that the petitioners were the lessees of the land belonging to and owned by the respondent No. 3 Anjar Municipality upon which they have put up superstructures and thus they are owners of the superstructures.
5. It is the case of the petitioners that after the Earthquake of 26th January 2001 respondents No. 1 and 2 have invoked the provisions of the Act; intention was declared for the Town Planning Scheme No. 4; Draft Town Planning Scheme was published; and in the map of Draft Town Planning Scheme which was placed for inspection the properties of the petitioners were not shown at all but were shown as ''demolished structures'' and therefore the petitioner No. 2 made a written representation dated 7.6.2002 in response to the Public Advertisement dated 25.5.2002 published in the local daily, ''Kutch Mitra''. Objections were invited by public advertisement dated 24.11.2002 in the local daily, and it is the case of the petitioners that they lodged objections again by letter dated 3.11.2002. Thus it is the case of the petitioners that the standing properties bearing municipal numbers were overlooked. It is the case of the petitioners that the petitioners had approached the office of respondent No. 2 and they were promised that the proposed six metres wide road will be changed while making the scheme final. Again, a joint representation dated 26.12.2002 was made by the petitioners on 26/27.12.2002 and the petitioners received reply from the respondent No. 2 dated 9/11.7.2003 stating that the representation dated 26.11.2002 came to be received by them on 28.1.2003 and by then the Preliminary Town Planning Scheme had already come into force with effect from 21.1.2003 sanctioned by the State Government under the provisions of the Act. It is the case of the petitioners that thereafter the petitioners again addressed a letter dated 9.6.2003 to the respondent No. 1 pointing out that their objections were not considered at all and if their place of business is taken away they would lose their source of livelihood. The petitioners have tried to make out a case that such six metres wide road is not required and/or not feasible. That as the petitioners were served with a notice dated 3rd October 2003 issued under Sections 67 and 68 of the Act asking them to hand over possession failing which forcible action will be taken the petitioners have preferred the present Special Civil Applications seeking aforesaid prayers.
6. 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 u/s 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 u/s 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.
7. It is also the contention of the petitioners that under the town planning scheme for the purpose of widening of the road the superstructure is required to be demolished and therefore they are entitled to alternative land which is required to be given under the provisions of the Act and/or the compensation under the Act for which amendment which is sought. Relying upon the Judgment of the Hon''ble Supreme Court in the case of
7.1. Shri Anjaria, learned advocate appearing for the petitioners has further submitted that as per the Final Town Planning Scheme for the purpose of widening of the road 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 u/s 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
7.2. Relying upon the Judgment of the Assam High Court in the case of
7.3. It is required to be noted that the Special Civil Application was filed in the year 2003 and the Draft Amendment is proposed in the month of March 2005, more particularly when the petition is 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 petitioner to amend the present Special Civil Application, 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.
8. 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 u/s 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 u/s 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 u/s 42(1) of the Act. It is also further submitted that as required u/s 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 u/s 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 u/s 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 u/s 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 u/s 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 u/s 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 u/s 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 Civil Applications.
9. It is further submitted that the Asian Development Bank has provided funds for infrastructure development of the town planning scheme and as per the terms and conditions of the Asian Development Bank programme the work is to be completed within a scheduled time and therefore it is requested that if the status-quo/stay is continued for a longer time it will affect the finalisation of the town planning scheme and reconstruction of the roads and there will be breach of the time-bound programme. By the aforesaid submissions the respondents have come out with a case that they have followed the necessary procedure which is required to be followed under the Act and the town planning scheme has become final and the land in question on which the petitioners were having superstructure as lessee is earmarked for six metres vide town planning road. It is also further submitted that 374 suggestions/objections were received by the authority in response to various publications and those suggestions/objections came to be considered in detail by the authority in the Board Meeting held on 14.6.2002; the authority modified the draft town planning scheme and sent the same to the State Government for its sanction which came to be sanctioned by the State Government on 17.7.2002; and the land in question is required for laying six metres wide road for public purposes. It is further submitted that as such the petitioners being lessees have no right over the land in question and even the lease in favour of the petitioners is also not renewed by the respondent No. 3 Nagarpalika for the period 1.4.2002 to 31.3.2003, and even thereafter, and even as per the conditions of lease the petitioners do not have any permanent right over the lease land and they are required to hand over possession of the land to the Area Development Authority which is required for the purpose of six metres wide road. The learned advocates appearing on behalf of the respondents have submitted that the petitioners are not owners of the land; petitioners were the lessees of the respondent No. 3 Nagarpalika and since their lease has not been renewed after 2002 they have no right to continue on the land in question, and in view of non-renewal of the lease which is not challenged by the petitioners and which is accepted by the petitioners they have no right to continue on the land in question. It is further submitted that the petitioners cannot be termed as owners of the land being owners of the superstructure as contended on behalf of the petitioners and therefore they are not entitled to the land and/or compensation as prayed for on behalf of the petitioners. It is further submitted that as the petitioners are not owners of the land they are not required to be given any alternative land in lieu of the land occupied by them which is going under the town planning scheme and that once the town planning scheme has become final it has become part of the Act and all lands vest in the Area Development Authority by virtue of Section 67 of the Act with effect from 21.1.2003 and therefore also they have no right to continue in the land in question, and therefore requested to dismiss the Special Civil Applications.
10. Referring to the contention made on behalf of the petitioners with regard to special notice or individual notice as per Section 52 of the Act read with Rule 26 of the Rules and the reliance placed upon the judgment of the Hon''ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra), the learned advocate appearing for the respondents has submitted that the Judgment of the Hon''ble Supreme Court relied upon by the petitioners will not be applicable to the facts of the present case, as in that case the Hon''ble Supreme Court was considering the provisions of the Bombay Town Planning Act and the Rules and the provisions of law which were applicable at the relevant point of time, where the present case is governed by the provisions of the Gujarat Town Planning Act, 1976 and the Rules and both the provisions are different. It is also further submitted that the identical question came to be considered by the Division Bench of this Court in the case of Chandravadan Chunilal Shah v. State of Gujarat, reported in 2002 (3) GLH 76, where, while considering the earlier judgment of this Court, this Court has held that special or individual notice is not required to be given to person affected by the Town Planning Scheme. As regards the prayer of the petitioners relating to alternative accommodation, relying upon the judgment of the Hon''ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra), it is submitted that the said judgment will not be helpful to the petitioners in the facts and circumstances, as in that case the Hon''ble Supreme Court was considering the provisions of the Bombay Town Planning Act and considering the provisions of the Bombay Town Planning Act and the Rules the Hon''ble Supreme Court has held that noncompliance of the requirements would vitiate the final scheme as there was noncompliance of Rule 21(3)(4) of the Rules. However, while directing the respondents to allot a suitable shop to a tenant who was running business premises in question for long, the Hon''ble Supreme Court did not interfere with the scheme on the ground of noncompliance of sub-sections (3) and (4). Thus, it is submitted that only with a view to see that the scheme is not interfered with which was found to be illegal, i.e., without complying with requirements in the facts and circumstances of the case, the Hon''ble Supreme Court has directed to allot a suitable shop. Therefore, it is requested that the petitioners are not entitled to any alternative land also as prayed for.
11. Heard the learned advocates appearing on behalf of the parties. It is not in dispute that the petitioners were the lessees of the land owned by the respondent No. 3 Nagarpalika and they are claiming to be owners of the superstructure. It is also not in dispute that their lease is not renewed on and after 1.4.2002. It is also not in dispute that the land in question upon which the petitioners are alleged to have erected shops/superstructures is going under six metres wide town planning road and the Town Planning Scheme has become final under the provisions of the Act. As per Section 67 of the Act on finalisation of the town planning scheme and after sanctioning of the preliminary scheme by the State Government all lands required by the Area Development Authority vest in the authority free from all encumbrances. Thus, by operation of law, the petitioners have no right to continue on the land in question on and from 21.1.2003, i.e., the day on which the preliminary scheme is sanctioned by the State Government. The contention on behalf of the petitioners, while relying upon sub-section (xiii) of Section 2, that as they are owners of superstructure they are required to be considered as owners of the land for the purpose of considering their case under the Town Planning Scheme, has no substance. There is no construction and/or having any property permanently fastened to anything attached to the Earth. If the petitioners are owners of the superstructure, then they are required to take away the superstructure, and nobody has restrained them from taking away the superstructure. When a pertinent query was put to the learned advocate appearing for the petitioners that in a case where the lease in favour of the petitioners is validly terminated and/or not renewed and if the petitioners are required to vacate from the land, what will be the position of the superstructure and whether still they can insist to continue on the land in question which is not owned by them, the learned advocate appearing for the petitioners had no answer. Even as stated above, the lease is not renewed in favour of the petitioners after 1.4.2002. Considering the provisions of the Act and the definition of ''landowners'', the petitioners cannot be considered to be owners of the land so as to give all the rights which are given to the owners of the land under the Act. As stated hereinabove, at every stage of Draft Town Planning Scheme as well as Preliminary Town Planning Scheme, suggestions and objections are invited by giving public notices in the local newspapers as well as affixing at conspicuous places and objections/suggestions are considered by the authority, and thereafter the scheme is sanctioned by the State Government. The contention on behalf of the petitioners that the petitioners were not served with individual notices and therefore the scheme is bad has no substance.
11.1. An identical question, whether the persons affected by the Town Planning Scheme are required to be served with special or individual notice as contemplated u/s 52 of the Act read with Rule 26(2) of the Rules or not and non-service of special or individual notice to the person affected by the Town Planning Scheme would vitiate the Town Planning Scheme or not, came to be considered by the Division Bench of this Court in the case of Chandravadan Chunilal Shah (Supra), and after considering the Judgment of the learned Single Judge of this Court [Coram: N.N. Mathur, J., as he then was] in the decision of
11.2. It is required to be noted that as such in the present Special Civil Applications, the petitioners have not challenged the Town Planning Scheme which has become final. What is challenged is the notices issued u/s 68 of the Act read with Rule 33 of the Rules by which the petitioners are called upon to hand over possession of the land which is going under six metres wide road under the finalised Town Planning Scheme. Once the Town Planning Scheme has become final and the land is required for the purpose of six metres wide road under the finalised Town Planning Scheme in absence of challenge to the town planning scheme, the consequences are inevitable. The persons who are in occupation of the land are required to hand over peaceful and vacant possession of the land which is needed for the purpose of implementation of the Town Planning Scheme and the only thing which was required to be done was service of notice as contemplated u/s 68 of the Act read with Rule 33, and such notices are served upon the petitioners. As the notices are in consequence of finalisation of the Town Planning Scheme, the petitioners have no right to continue to be in possession and occupation of the land in question which is required for the purpose of implementation of the Town Planning Scheme, which is not challenged by the petitioners. If for the purpose of implementation of the Town Planning Scheme the notices are issued upon the petitioners as contemplated u/s 68 read with Rule 33 and the petitioners are called upon to hand over peaceful and vacant possession of the land in question, it cannot be said that the action of the respondents is in any way illegal and/or contrary to the provisions of the Act.
12. So far as the contention on behalf of the petitioners with regard to alternative land, relying upon the Judgment of the Hon''ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra) by which the Hon''ble Supreme Court has directed to allot alternative shops to the tenants who were likely to be affected by the scheme is concerned, the said Judgment in the case of Jaswantsingh Mathurasingh (supra) will not be helpful to the petitioners, as the Hon''ble Supreme Court has not decided and held that in all cases where the land in question which is needed for the implementation of the Town Planning Scheme is occupied by the tenants, the authority is required to allot alternative land and/or the shop to such tenants. The decision of the Hon''ble Supreme Court, in the aforesaid case, is dealing with the provisions of the Bombay Town Planning Act and the Rules and in a case where it was found by the Hon''ble Supreme Court that the scheme is vitiated because of noncompliance of the mandatory provisions of the Bombay Town Planning Act and the Rules and so as to see that the scheme is not declared invalid, the Hon''ble Supreme Court has directed to give alternative shop to the tenant. As such, as stated hereinabove, the scheme is not challenged by the petitioners, however, in view of the fact that the learned advocate appearing for the petitioners has argued and made submissions with regard to alternative land as well as compensation, this Court is considering the aforesaid argument also so that it may not be said that the learned advocate has argued and is not dealt with by this Court. The identical question came to be considered by the Division Bench of this Court, and while dealing with the rights of lessees, this Court has held as under;
"Lastly, in the final town planning scheme as a general note it has been inter alia mentioned that all rights of lessors and lessees in the original plots are hereby transferred to the corresponding final plots irrespective of change in area except where otherwise specified in the remarks column. The learned Advocate for the petitioners relied upon this general note and submitted that the petitioners'' right is saved and, therefore, the Municipality should be directed to hand over the possession of 12 ft. x 12 ft. area out of final plot No. 70 which is allotted to the original owner. In our view, this submission is totally devoid of any substance. The general notes are only to clarify that if rights of lessors and lessees are determined as per the provisions of section 32 clause (xii) read with section 68 of the Bombay Town Planning Act, 1954, those rights are saved and would stand transferred to the corresponding final plots. Further, this submission is totally misconceived because original plot is not reconstituted. The original plot which is reconstituted and given final plot No. I is reserved for the Municipality. The general notes do not provide that rights which are not specified or actually determined would also stand transferred. Further, this contention, if accepted, would frustrate the whole scheme and it would be difficult to finalise and implement the town planning scheme. This we say because after finalisation of the scheme, number of disputes can be raised by the plot-holders whose lands are reserved for the public purpose or who are not allotted alternative land or who are allotted plot of smaller size, or by the tenants or sub-tenants to whom plots are not allotted or whose tenancy rights are not protected or that compensation awarded to them is less. In our view, these objections were required to be raised before finalisation of the town planning scheme. Therefore, to obviate these difficulties, section 53 of the Act, inter alia, provides that on the day on which the final town planning scheme comes into force all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by this Town Planning Officer. u/s 54 any person who is continuing to occupy any land which he is not entitled to occupy under the final scheme is required to be evicted by the local authority. Not only this, but under sub-section (3) of section 51 on and after the date fixed in such notification a town planning scheme shall have effect as if it were enacted in the Act. In view of section 51(3), the final town planning scheme is considered to be an enactment and, therefore, the Court cannot change it or modify it. Therefore, once we arrive at the conclusion that it was not necessary for the Town Planning Officer to issue a special notice as required under the unamended Rule 21(3), then in our view this Court would have no jurisdiction to give further direction that the petitioner''s right ought to have been saved or ought to have been transferred to the corresponding final plot No. 70 by modifying final town planning scheme."
12.1. Considering the Judgment of the Division Bench of this Court as well as considering the provisions of the Gujarat Town Planning Act, in particular Section 67 of the Act, after the Town Planning Scheme has become final all lands which are needed by the Area Development Authority for the purpose of implementation of the Town Planning Scheme vest in the authority free from all encumbrances. Thus, on and after 21st January 2003, the petitioners have no right, title or interest in the land in question, and by virtue of provisions of Section 67 of the Act, the land in question, which is needed for 6 metres wide road vest in the Area Development Authority and free from all encumbrances, and the petitioners have no right to continue in the land in question.
12.2. As regards the contention on behalf of the petitioners that as such the six metres wide road under the Town Planning Scheme is not required is concerned, it is ultimately for the Town Planner and the Area Development Authority to consider the same and it is the subjective satisfaction of the Area Development Authority considering the fact situation whether the six metres wide road is required or not. This Court is not sitting as an Appellate Authority. Even in the affidavit-in-reply, there is a justification for six metres wide road and for the purpose of better planning and in view of existence of a small road in the past the authorities had experienced difficulties due to which it is decided to have six metres wide road which is just and proper. In fact there is no malafide alleged against the Area Development Authority.
13. So far as prayer of the petitioners for direction on the respondent No. 2 Area Development Authority to propose variation to the State Government u/s 70 of the Act so as to redress the grievance of the petitioners raised in this petition and salvage the existing building structure/place of business bearing Municipal Case No. 9/913, 9/915 and 916, 9/912 and 9/911, is concerned, it is worthwhile to consider the provisions of Section 70 of the Act which reads as under;
"Sec.70. Power to vary scheme on ground of error, irregularity or informality.
(1) If after the preliminary scheme or the final scheme has come into force, the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality, the appropriate authority may apply in writing to the State Government for the variation of the scheme.
(2) If on receiving such application or otherwise, the State Government is satisfied that the variation required is not substantial, the State Government shall publish a draft on such variation in the prescribed manner.
(3) The draft variation published under sub-section (2) shall state every variation proposed to be made in the scheme and if any such variation relates to a matter specified in any of the clauses (a) to (h) of sub-section (3) of section 40, the draft variation shall also contain such other particulars as may be prescribed.
(4) The draft variation shall be open to the inspection of the public at the head office of the appropriate authority during office hours.
(5) Within one month of the date of publication of the draft variation, any person affected thereby may communicate in writing his objections to such variation to the State Government through the Collector and send a copy thereof to the appropriate authority.
(6) After receiving the objections under sub-section (5), the State Government may, after consulting the appropriate authority and after making such inquiry as it may think fit, by notification -
(a) appoint a Town Planning Officer and thereupon the provisions of this Chapter shall, so far as may be, apply to such draft variation as if it were a draft scheme sanctioned by the State Government, or
(b) make the variation with or without modification, or
(c) refuse to make the variation.
(7) From the date of the notification making the variation, with or without modification, such variation shall take effect as if it were incorporated in the scheme."
It is only in a case where the appropriate authority considers that the scheme is defective on account of an error, irregularity or informality they may apply in writing to the Government for variation of the scheme. It is not the case here that the scheme is defective on account of an error, irregularity or informality as per the Area Development Authority. Even otherwise, it is ultimately for the Area Development Authority to move the State Government for variation. Under the circumstances, the prayer of the petitioners to direct the respondent No. 2 to suggest for variation cannot be accepted and the same is rejected.
14. So far as the contention on behalf of the petitioners that due to implementation of the Town Planning Scheme the land in question will be taken away by the Area Development Authority for the purpose of widening of the road and that they will have to demolish the superstructure of the petitioners, and that even for the purpose of saving their property and the superstructure variation is required, is concerned, it is worthwhile to consider the judgment of this Court in the case of Jethabhai Mepabhai Makwana v. State of Gujarat, reported in 2004(3) GLH 675. Rejecting the petition of the petitioners who were likely to be affected for the purpose of six metres wide road under the Town Planning Scheme, and when a grievance was made that because of the scheme the petitioners were to lose his residential house which is in violation of fundamental rights, the learned Single Judge of this Court in the aforesaid case has held that the Earthquake had practically destroyed the city of Anjar and it became absolutely necessary for the respondents authorities to make an effort to see that the residents of the city are rehabilitated as soon as possible and the city is reconstructed in a planned manner. Rehabilitation was not the only object for which the scheme has been framed. It was also the object to have modern planning and reconstruction of infrastructure in a better manner and in the said process some is bound to be adversely affected. Considering the fact that in the past the constructions in the city of Anjar were in unorganized and haphazard manner and most of the original plots were not of normal size and regular shape and the roads were also not having adequate width and at the time when Anjar was affected due to Earthquake it was not possible for the Government agencies as well as NGOs to render necessary help to fire-fighters, ambulance etc., for rescuing the persons seriously affected, and considering the aforesaid difficulties faced due to large-sale destruction and very narrow roads with irregular road alignment it was necessary for the respondent No. 2 authority to make a good comprehensive scheme so that all errors which had been committed by the residents of the city in matter of construction of houses in the past are rectified and that there would be six metres wide road which is neither illegal nor affecting the fundamental rights of the petitioners. Considering the aforesaid judgment and considering the fact that the land in question is needed for the purpose of widening of six metres road under the Town Planning Scheme which has become final and now which has become part of the Act, and the land vests in the Area Development Authority as contemplated u/s 67 of the Act, if the petitioners are served with the notices u/s 68 read with Rule 33, it cannot be said that there is any illegality committed by the authorities which needs interference of this Court exercising power under Article 226 of the Constitution of India. On the contrary, considering the object and the purpose of the Town Planning Scheme and to have six metres wide road in a planned manner if the superstructure is required to be demolished, then even considering the public interest versus private interest, the public interest is required to be given priority and more weightage than the private interest. However, in view of the fact that even the petitioners have not challenged the Town Planning Scheme itself and they have challenged only the notices as stated hereinabove issued u/s 68 of the Act and Rule 33 for the purpose of implementation of the Town Planning Scheme which has become final, there is no substance in the present Special Civil Applications and the same are required to be dismissed.
14.1. So far as the contention on behalf of the petitioners, with regard to allotment of final plot and payment of compensation under the Town Planning Scheme, relying upon the judgment of the Assam High Court in the case of Niresh Chandra V. Paresh Chandra (Supra), to the effect that the tenancy right is a property and that by virtue of implementation of Town Planning Scheme their superstructures would be demolished, is concerned, it is required to be noted that the lease period in favour of the petitioners has already expired and there is no lease at present in existence after 1.4.2002.If the petitioners are the owners of superstructures, then as such on expiry of the lease period they are required to vacate the premises and to take away the superstructures. Even otherwise, as stated hereinabove, the petitioners cannot be considered to be the owners of the land being owners of the superstructures. While considering the allotment of final plot and payment of compensation, the Town Planning Officer is required to consider and allot the final plot and determine the compensation to the original landowner. The question with regard to compensation is required to be considered by the Town Planning Officer u/s 53 of the Act and even nothing is on record to show what would be the damages and/or compensation. If at all the petitioners are of the opinion that they are entitled to the compensation, the remedy was to approach the Town Planning Officer for the purpose of determining compensation, if any, however, the present petition under Article 226 of the Constitution of India, where initially only notices u/s 68 of the Act read with Rule 33 are challenged, is not required to be entertained.
14.2. It is required to be noted at this stage that the Asian Development Bank has provided funds for infrastructural development, and as per the conditions of the Asian Development Bank programme, the work is required to be completed within a stipulated time and any impediment therein will lead to breach of terms and conditions of the loans given by the World Bank. It appears that this an attempt on the part of the petitioners to delay the implementation of the Town Planning Scheme which has become final.
15. For the reasons stated hereinabove, all the Special Civil Applications are required to be dismissed and are hereby dismissed. The ad-interim relief granted earlier is required to be vacated. However, at this stage, the learned advocate appearing on behalf of the petitioners requests to continue the order of status-quo granted earlier by this Court, in view of he fact that the Town Planning Scheme in question is required to be finalised as the Asian Development Bank has provided funds for infrastructural facilities in respect of the Town Planning Scheme and there is a deadline fixed by the Asian Development Bank and according to its programme the work is required to be completed within a stipulated time, it would not be in the interests of public at large to continue the order of status-quo for a longer period. However, in the facts and circumstances of the case and in view of the fact that the order of status-quo is continued since 2003, the same is directed to be continued for a further period of two weeks.
