Gujarat High Court
Hasmukhbhai Ambalal Patel vs State Of Gujarat on 25 November, 2022
C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14454 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 14469 OF 2016
To
R/SPECIAL CIVIL APPLICATION NO. 14476 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 20420 of 2018
==========================================================
HASMUKHBHAI AMBALAL PATEL & ORS.
Versus STATE OF GUJARAT & ORS.
========================================================== Appearance:
MR DHRUVIK K PATEL & MR MAHESH PAREKH, ADVOCATES for the Petitioners MS JYOTI BHATT, AGP for the Respondents No.1 & 3 - State MR DEEP D VYAS, ADVOCATE for the Respondent No. 2 - Corporation ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT Date : 25/11/2022 CAV ORDER 1.1 The present petition is filed by the petitioners under Article 226 of the Constitution of India by challenging the impugned notice dated 20.08.2016 issued by the Corporation under Section 68 read with Rule 33 of the Act and seeking direction against the respondents to allot or give physical vacant and peaceful possession of Final Plot No.18, 21 and 24 in re-constitution of plots Page 1 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 of T.P. Scheme No.3 (Odhav), Ahmedabad. 1.2 Since the grievance of all the petitioners are the same, this group of petitions are taken for hearing, heard and decided together by this common order, with the request and consent of all the learned advocates appearing for the respective parties.
2. Heard Mr.Mahesh A. Parekh, learned advocate for the petitioners, Mr.Deep D. Vyas, learned advocate for the Corporation and Ms.Jyoti Bhatt, learned advocate for the State Authorities.
3.1 Mr.Parekh, learned advocate for the petitioners has submitted that the petitioners are the originally occupiers of Survey Nos.93/1+5, 98, 99 and 102. The land of the said survey numbers are divided into two parts right from the beginning, whereon, the petitioners have been occupying and running their Small Industries in a very small portion of the said Survey Numbers. The petitioners are entered into the said portion of the land by way of Deed of Possession Right from one after another owner / occupier of the said land in question Page 2 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 hence the petitioners' occupation have been continuing on a private land last for the several years and the said land at no point of time neither belongs to the State Government nor the Central Government OR Semi-Govt.
OR Ahmedabad Municipal Corporation.
3.2 He has submitted that on the said land, there is no dispute pending or going on before any Court of law or any Tribunal with regards to possession between the owner & the occupiers as there is a Deed of Possessory Right between them.
3.3 He has submitted that after the T.P. Scheme known as T.P. Scheme Odhav-3 was introduced, wherein, Re-Constitution took place under the provisions laid down in Gujarat Town Planning Act and accordingly, Final Plot No.19 is allotted to the petitioners. He has submitted that the petitioners have got their said F.P. on their own Survey Number i.e. on the same land on which they have already been in occupation. So, one cannot call them or recognize as illegal encroachers. He has submitted that on the contrary, it was the duty of the respondents while re-constitution that not to create Page 3 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 any dispute regarding taking physical possession as the officers of the respondents are knowing well & very well aware about the physical situation of each Final Plots, even then while re-constitution, deliberately, exchanged the land or portion of land & mixed with other adjoining owners of Final Plot.
3.4 He has submitted that ever since reconstitution was introduced, the petitioners had not received any notice with regard to road widening or for any public purpose, but in the year of 2016, out of nowhere, they received a notice under Sec. 68 to r/w Rule 33 of the Gujarat Town Planning Act & Rules, whereby, the Estate Officer of the Ahmedabad Municipal Corporation has mentioned in the said notice that the petitioners' land of said Survey Numbers have been converted into Original Plot No.18 and in lieu of that, the petitioners are allotted F.P.Nos.18, 21 and 24 and further it is stated that some of the portion of the petitioners' land was mixed up with F.P.Nos.17, 19, 22 and 29. 3.5 He has further submitted that in the Year of 2016, the petitioners received notice under Sec. 68 r/w Page 4 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 Rule 33 of the said Act and had immediately approached this Court and has challenged this impugned notice because at no point of time up-to the finalization of the said scheme the respondents had ever called the petitioners for hearing their objections. He has submitted that this Court has, therefore, granted status-quo as the petitioners are running small industries on a small portion of F.P. No. 19 and have been maintaining their family as well as providing to more than 100 people employments. He has submitted that the petitioners have also disclosed one material fact before this Hon'ble Court that they have also obtained regularization certificate under the Gujarat Regularization of Unauthorized Development Act, 2011 (GRUDA), whereby, the petitioners' small industries have been regularized by the GRUDA Cell. The petitioners have also paid their respective impact fees in the account of GRUDA Cell. 3.6 He has submitted that this Hon'ble Court granted status-quo to the petitioners on the impugned notice which is under challenge before this Court, but the moment the Corporation received the order of status- quo, a petition was made by the petitioners of Special Page 5 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 Civil Application No.4032 of 2014 before this Hon'ble Court, whereby the said petitioners seek variation of T.P.Scheme No.3 - Odhav, because they were allotted constructed premises of the present petitioners during re- constitution of the Plots in the T.P.Scheme. 3.7 He has submitted that the grievance of the present petitioners is different from the petitioner of Special Civil Application No.4032 of 2014, because the present petitioners have challenged the impugned notice of Sec.68 r/w Rule 33, while the petitioner of that petition has challenged variation of the T.P.Scheme, wherein, this Hon'ble Court, vide its oral order dated 26.04.2016 had specifically granted an order of interim relief which was granted earlier to continue till further order and specifically mentioned that, "the town planning officer shall file affidavit-in-reply and shall also explain the reasons for not allotting the piece belong to the petitioners themselves and has allotted the piece of land where the construction is already in existence." He has submitted that the respondent implementing authority i.e. the Corporation, despite of knowing well that there is already running industries on F.P. No. 19, allotted Page 6 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 F.P.No.19 to the petitioner of SCA No.4032 of 2014, instead of their own F.P. No. 21 because the petitioner of SCA No. 4032/2014 is an absolute owner of S.N.93/4 as the F.P. No. 21 is carved out from the said survey number.
3.8 He has further submitted that for the sake of satisfaction of others, the implementing authority i.e. respondent corporation cannot kick the present petitioners from their running in the name of implementation of final Scheme as the officers of the Corporation has no right to interference in occupancy of private property. He has submitted that the occupiers are equally entitled to hold the property as the original owners. 3.9 In support of his submissions, learned advocate Mr.Parekh for the petitioners has relied on the following decisions.
(i) 2007 (1) GLR 761 - Mukundlal Trikamlal Patwa versus State of Gujarat
(ii) Special Civil Application No.9757 of 2008 -
Govindbhai Popatbhai & Ors. Versus Ahmedabad Municipal Corporation & Anr.
(iii) 2017 JX (Guj.) 869 - Shamjibhai Ramjibhai Kevadia versus Town Planning Officers Page 7 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022
(iv) 2017 JX (Guj.) 735 - Ahmed Adam Mulla versus State of Gujarati
(v) 2018 (3) GLR 1980 - Manilal Devjibhai Solanki versus State of Gujarat 3.10 He has submitted that these petitions may be allowed and appropriate direction may be issued to the respondents.
4.1 Per contra, Mr.Deep D. Vyas, learned advocate for the Corporation has submitted that the petitioners are claiming the title on the basis of the notarised agreement to sell and therefore, Mr.Vyas has submitted that the petitioners claim to have acquired interest in the land by unstamped / inadequately unstamped agreements, which is undisputed fact. 4.2 He has submitted that draft Town Planning Scheme was sanctioned on 29.07.1981 and the Preliminary Town Planning Scheme was sanctioned on 03.10.1994. In the said T.P.Scheme, Survey No.93/4 was given O.P. No.14/2 and F.P. No.19, whereas Survey Nos.93/1+5, 98, 99 and 102 were given O.P. No.18 and F.P. Nos.18, 21 and 24.
Page 8 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 4.3 He has submitted that the petitioners claim to have regularised superstructure under the GRUDA (impact) is subsequently cancelled by the Authorities on 26.10.2017 since the petitioners do not have legal and valid title and does not derive any right or title in their favour. He has relied upon the proceedings of Special Civil Applications No.20420 to 20427 of 2018 before this Court.
4.4 He has submitted that the petitioners have accrued interest after sanctioning of the T.P.Scheme and the title is not flowing from the original owners, with cogent material on record. He has submitted that in sanctioning of the T.P.Scheme, the same becomes part of the Act and all rights required, vests with the authority free from all encumbrances.
4.5 He has submitted that this petition is even otherwise maintainable, as the petitioners have not joined the owners of Final Plot Nos.18, 21 & 24 as party.
Page 9 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 4.6 He has submitted that the petitioners do not have any title, moreover where even the requisition (impact), which the petitioners claim along with the plans, have not been signed and approved by the competent officers and is not correct. The said impact certificate and plans have been cancelled by the Corporation after affording opportunity of hearing by order dated 26.10.2007.
4.7 He has further submitted that even otherwise under the provisions of Sub-section 2 of Section 11 of GRUDA Act, (Gujarat Regularisation of Unauthorised Development Act), which itself provides that any decision under this section not be deemed to have decided ownership of the unauthorised development. Section 11 of the GRUDA Act reads as under :
Sec.11: Consequences of regularisation - (1) On regularisation of such unauthorised development under Sec. 6, all court cases or other proceedings, filed by the appropriate authority or the occupant or the owner or otherwise and pending in any court in so far as they relate to such unauthorised development, shall stand abated.
(2) Any decision under this Act shall not deemed to have decided the ownership of the unauthorised development. Page 10 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022
C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 4.8 He has submitted that even otherwise, there is statutory appeal available under Section 12 on the question of fact and law and therefore also, these petitions challenging cancellation of GRUDA is not maintainable.
4.9 He has submitted that by virtue of the scheme of the Town Planning Act, the petitioners are not the owners and in fact, they have encroached the property, without valid title in ownership.
4.10 He has submitted that these petitions may be dismissed as premature and not tenable.
5. Ms.Jyoti Bhatt, learned AGP for the State has adopted the submissions made by the learned advocate for the Corporation and has submitted that these petitions may be dismissed.
6. I have heard the learned advocates for the respective parties. I have also considered the material on record. The picture which has emerged before this Court is as under.
Page 11 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 6.1 It is an undisputed fact that the petitioners are not the legally title holders of the land which they possess. They are in possession of the land in question through the agreement to sell only since many years. 6.2 The regularisation of the unauthorised construction, which is claimed by the petitioners, under the GRUDA Act (Impact), has been cancelled by the Authorities, which is also an undisputed fact. In view of Section 11 of the Gujarat Regularisation of Unauthorised Development Act, any decision under this section not be deemed to have decided the ownership of the unauthorised development. There is also a provision for appeal under Section 12 of the Act, which the petitioners did not avail and thus, the cancellation order has attained finality.
6.3 It is noted that the draft Town Planning Scheme No.3 (Odhav), Ahmedabad was sanctioned on 29.07.1981 and the Preliminary Town Planning Scheme was sanctioned on 03.10.1994. In the said T.P.Scheme, Survey No.93/4 was given O.P. No.14/2 and F.P. No.19, whereas Survey Nos.93/1+5, 98, 99 and 102 were given Page 12 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 O.P. No.18 and F.P. Nos.18, 21 and 24. As submitted by the petitioners, the Final Plot No.21 is carved out from Survey No.93/4. The ownership of Survey No.93/4 is of the persons other than the petitioners, which is also an undisputed fact.
6.4 The judgments cited by the learned advocate for the petitioners are not applicable to the facts of these cases as the petitioners are not having valid and proper documents of the title.
6.5 Since the petitioners have no legal title in the land in question, the petitioners may be treated as encroachers, though they are in possession over the land in question from many years. The documents on which they rely is an notarised agreement to sell and not the registered one also. Therefore, this Court finds that no prayer need to be granted to the petitioners by exercising the jurisdiction under Article 226 of the Constitution of India.
7. In view of above facts and considering the totality of the circumstances, it would be open for the Page 13 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022 C/SCA/14454/2016 CAV ORDER DATED: 25/11/2022 petitioners to approach the respondents - Authorities by way of appropriate representation / application along with all the relevant materials. On receipt of such representation/application, the respondents - Authorities are directed to decide such representation / application of the petitioners, keeping in view the relevant documents as well as record available with them, as expeditiously as possible, but preferably within a period of six weeks from today, in accordance with law and communicate the decision to the petitioners within two weeks thereafter.
8. Accordingly, all these petitions are disposed of.
Direct service is permitted.
(SANDEEP N. BHATT,J) M.H. DAVE Page 14 of 14 Downloaded on : Sat Dec 24 00:13:00 IST 2022