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LPA/698/2010 4/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 698 of 2010
In
SPECIAL CIVIL APPLICATION No. 11478 of 2009
With
CIVIL
APPLICATION No. 3785 of 2010
In
LETTERS PATENT APPEAL No. 698 of 2010
=============================================
BAL
SHIKSHAN SAMITI TRUST & 1 - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
============================================= Appearance
:
MR
MEHUL S SHAH for Appellant(s) : 1 - 2.MR SURESH M SHAH for Appellant(s) : 1 - 2.
None for Respondent(s) : 1 -
3.
=============================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 20/04/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
The
appellants are original petitioners. They had filed Special Civil Application No.11478 of 2009 which came to be dismissed by the learned Single Judge by his order dated 01.02.1010, which the appellants have challenged in the present Letters Patent Appeal.
2. It
appears that the petitioners run a school which is situated in Final Plots Nos. 267 and 268 of Town Planning Scheme No.2 of Vadodara. Between the said two Final Plots Nos. 267 and 268, there has been a proposal to construct Town Planning Road of 7.5 meters width. The Town Planning Scheme has been duly sanctioned by the Government way back in the year 1976 and came into effect from 15.03.1976.
3. In
the writ petition, the main prayer of the petitioners was that the said Scheme be varied to the extent of annulment of 7.5 meters road dividing Final Plots Nos. 267 and 268 of the Town Planning Scheme No.2.
4. It
appears that the construction of the school building carried out by the petitioners was in excess of the approved plans. Part of the construction falls in the margin land of the said Town Planning Road. Municipal authorities, therefore, issued a show cause notice dated 26.08.2009 to the petitioners u/Sec.260(1) of the Bombay Provincial Municipal Corporations Act, 1949 (`BPMC Act' for short) calling upon the petitioners to remove such unauthorised construction. Petitioner replied to the said show cause notice vide a detailed representation dated 03.09.2009. Municipal authorities, however, passed an order dated 23.09.2009 rejecting the objections of the petitioners. This rejection order also has been challenged by the petitioners in the writ petition.
5. Upon
perusal of the reply to the show cause notice filed by the petitioners it can be seen that the main thrust of the representation of the petitioners was that the said Town Planning road of 7.5 meter width is no longer useful or necessary. The Town Planning Scheme, therefore, should be varied. It is primarily on this ground that the proposal for removal of the unauthorised construction was sought to be opposed. Significantly, no contention has been raised by the petitioners that the construction indicated in the show cause notice is not in excess of the plan passed and if the Town Planning road stands, the construction of the petitioners would be within the margin of the said road. Thus, admittedly, the construction is in excess of the approved plans.
6. Before
the learned Single Judge also the main thrust of the arguments of the petitioners was that the Town Planning Road has become redundant and that the Town Planning Scheme should, therefore, be varied. It was also pointed out that at one stage the Municipal authorities had also considered the possibility of varying the Town Planning Scheme. Be that as it may, the Town Planning Scheme was eventually not varied. Learned Single Judge considered the submissions and found it not possible to grant direction to vary the Town Planning Scheme. The contention of the petitioners that the school accommodates large number of students and sudden removal of the construction would cause undue hardship to the students was sought to be obviated by the learned Single Judge, by offering a breathing time to the petitioners to vacate the premises. This offer was, however, not accepted.
Before
us the sole contention raised by counsel of the appellants was that the impugned order dated 23.09.2009 rejecting the objections of the petitioners is a non-speaking order. It was contended that when Section 260(2) requires the authorities to consider the objections of the petitioners in response to the notice under Section 260(1) of the BPMC Act, it is incumbent upon the competent authority to give reasons for not accepting such objections. Reliance was placed on the decision of the Apex Court in The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Ors. reported in AIR 2010 SC 1285.
In
the said petition, however, the Apex Court was considering a case where the recommendations of Expert Committee appointed by High Court in absence of any allegation of malafide or disqualification raised against any Member of the Committee, were rejected without assigning valid and good reasons. In that background, the Apex Court found the order illegal.
Reliance
was also placed on the decision of a learned Single Judge dated 11.08.2005 passed in Special Civil Application No.8863 of 1995 wherein with respect to the provisions of Sec.260 of the BPMC Act, the learned Single Judge observed:
In
my opinion, the petitioners cannot be deprived of their property without the sanction of law and without payment of reasonable compensation. If Rajkot Municipal Corporation requires the land of the petitioners for drawing fresh line for public street or for any other public purpose, then it can do so by initiating the process of acquisition which would necessarily involve giving of opportunity of hearing to them and payment of compensation. Under no circumstances, the petitioners can be deprived of their property without following the procedure established by law and without being given reasonable opportunity to defend their property.
7. None
of the two decisions cited above would apply to the present case. We are not laying down any legal proposition of absolute application for all cases. However, in the facts of the present case, we find that not giving elaborate reasons by the authority while not accepting the objections of the petitioners would not be fatal to the order. In the present case, virtually all factual aspects are admitted. The existence of 7.5 meter Town Planning road between the two Final Plots is not in dispute. The fact that construction as it exists today of the school building of the petitioners falls within the margin area of such road is also not in dispute. The construction being in excess of the plan permitted is also not controverted by the petitioners. As noted earlier, on behalf of the appellants only ground urged was that the order of the authority rejecting the objections of the appellants was a non-speaking order. No arguments are made regarding prayer for variation of the Scheme. Even otherwise, we find that such a request cannot be sustained. Learned Single Judge has given elaborate reasons to refuse such prayer. No error, irregularity or infirmity in the Scheme is established. The Scheme was finalised way back in the year 1976. In view of undisputed facts noted above and in absence of any possibility if variation in the Scheme, construction of the petitioners cannot be saved. Non-recording of detailed reasons therefore in the present case would not be fatal.
8. Counsel
for the appellants lastly submitted that Municipal authorities before taking possession of the land of the appellants for construction of the road must pay the compensation for the same. Such question was never before the learned Single Judge. This ground has not been raised in the Appeal also. There are no factual averments on record to permit us to examine this grievance of the appellants. This ground is therefore not possible to be considered in this Appeal. In any case, nothing stated in this order is meant to authorise the municipal authorities to take possession of the land de hors the law.
In
the result, the appeal fails and is dismissed. Civil Application also stands dismissed.
(S.J.
MUKHOPADHAYA, C.J.)
(AKIL
KURESHI, J.)
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devu] pps
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