AIRPORT AUTHORITY OF INDIA Vs. MAHADEVBHAI HARRAI NAIK AND ORS.
HIGH COURT OF GUJARAT
AIRPORT AUTHORITY OF INDIA
Mahadevbhai Harrai Naik And Ors.
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Anant S. Dave, J. -
(1.) Challenge in this appeal under clause 15 of the Letters Patent is the judgment dated 1.8.2013 rendered by the learned Single Judge in Special Civil Application No. 13869 of 2010.
1.1 In the above writ petition filed under Article 226 of the Constitution of India, the basic prayer of the petitioners was to seek declaration about zoning certificate issued to the petitioners showing that the land of the petitioners being revenue survey No. 160 of village Abhwa, District Surat as being reserved for Airport Complex of Civil Aviation Department (T -28) is bad and illegal and accordingly, appropriate writ, order and direction be issued and further, inter alia, it was prayed to declare that there is no reservation of the land in question as mentioned hereinabove.
1.2 In short, the petitioners challenged exercise of the powers by the authority under Sec. 17 of the Town Planning and Urban Development Act 1976 ("TP & UD Act 1976" for short).
(2.) Before the learned Single Judge, various contentions were raised on law as well as on facts that when the final notification dated 2.9.2004 was published, in item No. 26, subject land in question was not included in the reservation for Airport Complex of Civil Aviation Department (T -28) and even the numbers which are mentioned in item No. 26 only show that the land bearing survey numbers mentioned in above item No. 26 have been added to reservation of Airport Complex of Civil Aviation Department (T -28) as per Sec. 12(2)(a) of the TP & UD Act 1976. Prior to that notification dated 17.5.2001 issued by the State Government in exercise of the power under Sec. 17 of the TP & UD Act 1976, indisputably, the land in question designated for agricultural use came to be deleted and released as such and redesignated for residential use under Sec. 12(2)(a) of the TP & UD Act 1976.
2.1 Thus, at the stage of issuance of the notification dated 17.5.2001 whereby the reference was made to revenue survey No. 160 of the petitioners, no occasion had arisen to raise any objection or make any suggestion since it was only change of usage i.e. from agriculture to residential one to which petitioners had no grievance either of making representation, raising any objection or even suggestion against change of usage, subject land of the petitioners later on was placed in reservation for Airport Complex by notification dated 2.9.2004 and, therefore, a question had arisen about constitutional right of the petitioners i.e. Article 300 -A of the Constitution of India vis -vis exercise of power under Sec. 17 of the TP & UD Act 1976 and upon consideration of rival submissions, perusal of the record of the case, in the backdrop of pleadings filed by the parties, the learned Single Judge found clear breach of the provisions of Sec. 17(2) of the TP & UD Act 1976 and that before placing the land of the petitioners, i.e. revenue survey No. 160 under reservation for the purpose of Airport Complex (T -28) for Civil Aviation Department, petitioners had no opportunity to raise any objection or making any suggestion etc. and the petition came to be allowed as prayed for with declaration that zoning certificate issued to the petitioners showing the land of the petitioners being revenue survey No. 160 of village Abhwa, District Surat as reserved for Aerodrome Complex for Civil Aviation Department does not reflect correct position and, therefore, it was held to be patently bad with no legal force. Further declaration was made that there was no reservation of the above subject land having no mention made in the final development plan published vide notification dated 2.9.2004 and consequently, no question arises for showing the same as being under reservation for the purpose of zoning certificate.
(3.) While assailing the above judgment of the learned Single Judge, Shri P.S. Champaneri, learned counsel appearing for the Airport Authority of India - appellant and original respondent No. 4 would contend that if full text of the notification dated 2.9.2014 published by the Urban Development and Urban Housing Department of Government of Gujarat under the provisions of Sec. 17 of the TP & UD Act 1976 is seen whereby exercise of power conferred by clause (c) of sub -section (1) of Sec. 17 of the TP & UD Act 1976 finalizes the notification issued and further sanctioned the said revised development plan and regulations thereto subject to the modification so finalized and as set out in the schedule appended thereto. Thus, what is stated in item No. 26 of the schedule refers to various survey numbers reserved for recreation and the lands therein to be utilized from respective uses and shall be added to reservation of Aerodrome Complex of Civil Aviation Department (T -28) and such plan Nos. 3 and 4 earmarked as ABCDEFGHIJKLMNOPQRSTUVWXYZA included land of revenue survey No. 160 of the respondents/original petitioners. It is further contended that reservation of the land in question is for public purpose and mere error of not mentioning particular survey number like 160 of the petitioners by itself would not be such error resulting into reservation as patently bad or illegal and careful perusal of the notification dated 2.9.2004 by any affected person would give an opportunity to raise objection particularly when earlier the land in question in exercise of power by which modifications were made and resultantly, it was shifted from agriculture to residential use.
3.1 Thus, according to Shri P.S. Champaneri, learned counsel for the appellant, non -mentioning of revenue survey No. 160 of private respondent will not be fatal inasmuch as map/sketch annexed to the schedule shows definite marking of the area reserved for Aerodrome Complex of Civil Aviation Department (T -28). Accordingly, it is submitted that order impugned of the learned Single Judge deserves to be quashed and set aside.;
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