Petitioner sought writ to correct land area in a Town Planning Scheme and grant compensation based on an affidavit. The court held that a sanctioned scheme cannot be altered at the behest of the petitioner and that separate claims must be filed for scheme- and earthquake-related compensation.
Petition dismissed; rule discharged; interim relief vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/12473/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12473 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/-
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Whether Reportersbe allowed to see |
of Local Papers maythe judgment? |
NO |
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To be referrednot? |
to the Reporter or |
NO |
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Whether their Lothe fair copy of |
rdships wish to seethe judgment? |
NO |
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Whether this |
case involves a |
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substantial questinterpretation of |
ion of law as to thethe Constitution of |
NO |
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India, 1950 orthereunder? |
any order made |
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5 |
Whether it is tocivil judge? |
be circulated to the |
NO |
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JERAM LAKHAMSHI PEDVA....Petitioner(s)
Versus
CHAIRMAN & 4....Respondent(s)
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Appearance:
MR NALIN K THAKKER for the Petitioner(s) No. 1
MR UDIT MEHTA AGP for the Respondent(s) No. 2 - 5
MR NIKHILESH J SHAH for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 19/06/2014
ORAL JUDGMENT
1.The present petition is filed by the petitioner
under Articles 14 and 226 of the Constitution of
India as well as under the Gujarat Town Planning
and Urban Development Act, 1976 and Rules, 1979
for the prayer as prayed as for in the petition
inter alia for correction of the record showing
Page 1 of 8
C/SCA/12473/2004 JUDGMENT
the area as 40.52 sq.m. instead of 9.98 sq.m. and
also for the prayer to direct the respondent
authorities to grant plot admeasuring 40.52 and
also for the financial help on the grounds stated
in the petition.
2.Heard learned advocate, Shri Nalin Thakkar for the
petitioner, learned advocate, Shri N.J. Shah for
the respondent no.1 and learned AGP Shri Udit
Mehta for the respondent nos.2 to 5.
3. Learned advocate, Shri Thakkar has referred to the
background of the facts and tried to submit that
the petitioner was the owner of the house in Bhuj
city bearing survey no.506 admeasuring about 40.52
sq.m. However by inadvertence, it has been shown
as 9.98 sq.m., which has led to filing of the
petition. He submitted that earlier petition was
disposed of by the High Court (Coram : Jayant
Patel, J.) vide order dated 27.09.2004 and the
directions were issued. However, learned advocate,
Shri Thakkar submitted that as the decision or
prayer has not been granted, the petition has been
revived. He therefore submitted that area of plot
of the petitioner is 40.52 sq.m. In support of his
submission, he has tried to refer to the papers
Page 2 of 8
C/SCA/12473/2004 JUDGMENT
including the affidavit filed by City Survey
Superintendent stating that the area is 40.52
sq.m. on verification of the record and,
therefore, it should be corrected. Learned
advocate, Shri Thakkar submitted that since the
land has been covered by T.P. Scheme, appropriate
compensation may also be given on the basis of the
area of 40.52 sq.mt.
4.Learned advocate, Shri N.J. Shah referred to the
papers and submitted that relief prayed for cannot
be granted. He referred to the details and
submitted that the respondent no.1 is only the
implementing authority and, therefore, it is only
the State Government which can consider it.
Learned advocate, Shri Shah has also submitted
that aspect of compensation also could be
considered as per the scheme subject to the
fulfillment of the criteria. Learned advocate,
Shri Shah therefore submitted that when the
dispute regarding the area is also required to be
resolved on the basis of the evidence and the
record, the present petition under Article 226 of
the Constitution of India may not be entertained
for any such relief.
Page 3 of 8
C/SCA/12473/2004 JUDGMENT
5.Learned AGP Shri Mehta has submitted that the
petition is not maintainable. He also referred to
the prayers and submitted that prayer with regard
to the allotment of the plot or land covered in
T.P. Scheme is thoroughly misconceived. Further,
he submitted that as explained in the affidavit-
in-reply, at the relevant time when the
preliminary scheme was sanctioned, area which was
shown was only 9.98 sq.m. and the scheme was
sanctioned and even on that day, area was 9.98
sq.m. However on 01.11.2003, the correction was
sought to be made and on that basis, the claim is
made. He submitted that reliance placed on the
affidavit of the City Survey Superintendent also
cannot be accepted at the face value as he does
not have authority. He submitted that for the
measurement, it requires a detailed examination
and appreciation of evidence based on record and,
therefore, this petition under Article 226 of the
Constitution of India would not be maintainable
particularly when T.P. Scheme has been sanctioned.
He submitted that therefore alternate prayer
regarding the claim for compensation is required
to be examined in background of the fact that he
Page 4 of 8
C/SCA/12473/2004 JUDGMENT
has to make necessary claim and on the basis of
the verification, compensation could be awarded
under the Town Planning Act. Learned AGP Shri
Mehta submitted that it is not clear that the
claim is for the relief as the earthquake affected
person. He submitted that he would require a claim
to be examined by the authority under the scheme
framed by the Government like District Collector.
He submitted that no claim has been made regarding
land which is covered in the T.P. Scheme, which is
a separate issue. He therefore submitted that the
present petition may not be entertained.
6. In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.
7.As could be seen from the relevant papers from the
affidavits filed by the parties, the petitioner
has tried to claim that the correction may be made
with regard to the area based on affidavit of one
City Survey Superintendent, which is again
subjected to a scrutiny on the basis of the
material and evidence like actual examination of
the record of the survey, which is not available.
Therefore no declaration or relief as prayed for
Page 5 of 8
C/SCA/12473/2004 JUDGMENT
could be granted inasmuch as once T.P. Scheme is
sanctioned, it has to be accepted and it cannot be
granted at the instance of the petitioner as
suggested in the petition under Article 226 of the
Constitution of India and the discretion under
Article 226 of the Constitution of India cannot be
exercised. Further, measurement by DILR is
required to be accepted and not the opinion of the
City Survey Superintendent, on which, reliance has
been placed. It is required to be noted that while
preparing T.P. Scheme, details like measurement
etc. would be made and it would be considered
while sanctioning T.P. Scheme and only after
proper verification, such T.P. Scheme would be
finalized or sanctioned. Therefore the clock
cannot be put back as suggested. It is also
required to be mentioned as stated in detail in
the affidavit-in-reply filed by the respondent
no.1 that even on the date of preliminary scheme
as well as when it was sanctioned, the area was
9.98 sq.m. It is only on 01.11.2003, after the
preliminary scheme was approved, the area is shown
as corrected in the property card, which is a
disputed question of fact as to on what basis,
Page 6 of 8
C/SCA/12473/2004 JUDGMENT
such correction has been made by whom and pursuant
to which measurement or record. There is nothing
on record except the affidavit of the City Survey
Superintendent. Again once T.P. Scheme is
finalized and approved, person cannot claim land
and has to file necessary claim for the
compensation. It is not clear whether the
petitioner has lodged any claim for the
compensation in respect of the land covered under
the T.P. Scheme. It is required to be mentioned
that the compensation in respect of the land
covered under the T.P. Scheme is a separate issue
then the compensation for the earthquake relief
pursuant to any scheme framed by the Government.
Admittedly, no such claim has been made as regards
scheme of the Government for the earthquake
relief. Therefore, the petitioner has to make an
application or claim for the compensation for the
land covered under T.P. Scheme on usual procedure
under the Town Planning Act and the Rules. It is
not clear whether he has made any such claim for
the compensation for the land covered under the
T.P. Scheme. Again if the petitioner desires to
make a claim under the scheme by the Government
Page 7 of 8
C/SCA/12473/2004 JUDGMENT
for the relief as an earthquake affected persons
in respect of such premises, it has to be made
under the scheme after following necessary
procedure. If such a claim is made under the
scheme for the earthquake then, it could be
examined by the appropriate authority. As there is
no such claim or material for the compensation for
the premises as earthquake affected persons in a
scheme, it does not require any further
elaboration. Again admittedly, the petitioner has
not made any claim for compensation in respect of
the land covered under the T.P. Scheme. However,
it will be open for the petitioner to lodge a
claim in respect of the land covered under the
T.P. Scheme for compensation, which would be
considered on its own merits in accordance with
law.
8.With the above observation, the present petition
deserves to be dismissed and accordingly stands
dismissed. Rule is discharged. Interim relief, if
any, stands vacated.
Sd/-
(RAJESH H.SHUKLA, J.)
Gautam
Page 8 of 8
3 issues framed by the court
Whether the High Court can direct correction of land area in a sanctioned Town Planning Scheme based solely on an affidavit?
Whether a correction to the sanctioned area can be permitted to establish entitlement to compensation under the scheme.
Whether a petitioner must make a specific claim for compensation under the Government scheme for earthquake relief?
Jeram Lakhamshi Pedva
Chairman & 4
Rajesh H. Shukla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court