Gujarat High Court
Indira Gandhi Cooperative Housing ... vs State Of Gujarat Through The Secretary & ... on 22 March, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/7792/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7792 of 2016
==========================================================
INDIRA GANDHI COOPERATIVE HOUSING SOCIETY THROUGH
PRESIDENT KESHAVLAL BECHARDAS PARMAR & 1....Petitioner(s)
Versus
STATE OF GUJARAT THROUGH THE SECRETARY & 8....Respondent(s)
==========================================================
Appearance:
C J GOGDA, ADVOCATE for the Petitioner(s) No. 1 - 2
VIKAS V NAIR, ADVOCATE for the Petitioner(s) No. 1 - 2
MR SWAPNESHWAR GAUTAM, AGP for the Respondent(s) No. 1
M/S RJ RAWAL ASSOC., ADVOCATE for the Respondent(s) No. 2
MR NS SHETH, ADVOCATE for the Respondent(s) No. 4 , 8
NOTICE SERVED for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 6.1 , 9.1
NOTICE UNSERVED for the Respondent(s) No. 5 , 7
UNSERVED-EXPIRED (N) for the Respondent(s) No. 6 , 9
==========================================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 22/03/2017
ORAL ORDER
1. Following are the prayers made in para 8 of the present petition filed under Article 226 of the Constitution of India:-
A. YOUR LORDSHIPS may be pleased to admit and allow the present petition;
B. YOUR LORDSHIPS may be pleased to issue a wriut of mandamus and/or a writ in the nature of mandamus and/or order, directions directing the respondent corporation to remove the encroachments from the common plot of the petitioner society situated at Final Plot No.217, T.P. Scheme No.30, Asarwa Ward, Ahmedabad and further be directed to mark the boundaries of the vacated common plot and handover the vacant and peaceful possession of the subject premises to the petitioner;
C. Pending hearing and till final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Aug 13 14:29:02 IST 2017 C/SCA/7792/2016 ORDER authority to remove the encroachments from the common plot of the petitioner society situated at Final Plot No.217, T.P. Scheme No.30, Asarwa Ward, Ahmedabad;
D. Pending hearing and till final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authority to restrain the respondent Nos.3 to 87 from creating any further encroachments on the common plot of the petitioner society situated at Final Plot No.217, T.P. Scheme No.30, Asarwa Ward, Ahmedabad;
E. .....
F. ....."
2. It appears that the petitioners were allotted Final Plot No.217 under Town Planning Scheme No.30. However, the grievance made by the petitioners was that Final Plot No.217 remained encroached upon and it was for the concerned authority to give clear and vacant possession of Final Plot No.217 to the petitioners. As per the Affidavit-in-Reply filed by the Deputy Estate Officer of the Corporation, there were 23 encroachers on Final Plot No.217, out of which about 9 encroachers were found eligible for alternative places under the Scheme for providing alternative accommodation and out of 9 encroachers, 5 encroachers accepted the alternative accommodation. As further stated in the affidavit-in-reply, remaining encroachers were removed from Final Plot No.217 and Town Planning Scheme was implemented. It appears that the petitioner society had earlier moved a petition before this Court, being Special Civil Application No.19293 of 2005, making a grievance that though the petitioner was given possession of Final Plot No.217 without measurement and without fixing boundary mark. The Court disposed of the said petition vide order dated 23.9.2005 by permitting the petitioner to make representation to the competent authority of the Corporation and directed the competent authority to look into the representation of the petitioner. It appears that the petitioner then made some representations and ultimately filed another petition, being Special Civil Application No.17050 of 2013, seeking direction to Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Aug 13 14:29:02 IST 2017 C/SCA/7792/2016 ORDER the respondent authority to remove encroachment from the common plot forming part of the land of the petitioner society. Such petition was not entertained on the ground that the disputed question of fact as regards encroachment of the land could not be gone into the petition under Article 226 of the Constitution of India. However, on Letters Patent Appeal No.1087 of 2015 being filed by the petitioner, the Letters Patent Bench permitted the petitioner to withdraw the said petition as well as the Letters Patent Appeal with liberty to the petitioner to file fresh petition for the same relief after joining the persons stated to be the encroachers on the common plot of the petitioner society and that is how, the present petition is filed.
3. It is required to note that in the present petition, only six persons- respondent Nos.4 to 9 are joined who are stated to be the encroachers on common plot in Final Plot No.217 of the petitioner society. On behalf of respondent Nos.4 to 8, affidavit-in-reply is filed by respondent No.8, wherein it is stated that there are allotted 112.3 Sq. Mtrs. of land in the name of Nad Jagruti Seva Trust by the Housing Board for consideration of Rs.25,19,900/- and on payment of the total amount, the Housing Board entered into lease deed on 18.2.2016 in their favour and even they also paid stamp duty of Rs.1,23,700/-.
4. Learned advocate Mr. Nair for the petitioners submitted that since there was no clear marking or demarcation made by the competent authority at the time of handing over Final Plot No.217, the common plot from Final Plot No.217 remains encroached upon and the encroachers are respondent Nos.4 to 9 and other persons. He submitted that allotment of plot admeasuring 112.3 Sq. Mtrs. to the respondent Nos.4 to 9 in the name of Nad Jagruti Seva Trust by Housing Board, is adjacent and touching the common plot of the petitioners, and that is being used to unauthorizedly encroach upon the common plot of the petitioners. Mr. Nair submitted that such Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Aug 13 14:29:02 IST 2017 C/SCA/7792/2016 ORDER encroachment on the part of respondent Nos.4 to 9 is only because there was no proper marking and measurement done of Final Plot No.217 when it was handed over to the petitioners. Mr. Nair therefore, submitted that since it was statutory obligation on the part of the competent authority to give clear and vacant possession of Final Plot No.217 to the petitioners and since no such clear and vacant plot was handed over to the petitioners, not only the respondent authorities are required to be directed to take steps for removal of the encroachment from the common plot of the petitioners but even the respondent Nos.4 to 9 are required to be directed to remove their encroachment from the common plot of the petitioners.
5. Learned advocate Mr. Sheth appearing for respondent Nos.4 to 8 submitted that the respondent Nos.4 to 8 are not encroachers on any land of the petitioners but, in fact they are occupying the plot allotted to them by the Housing Board. Mr. Sheth submitted that the Housing Board has allotted the plot in the name of Nad Jagruti Seva Trust for which huge amount is paid by the respondent Nos.4 to 8 and the allotment has become final on Housing Board entering into the lease deed in favour of respondent Nos.4 to 8. He submitted that by the present petition, the petitioners want this Court to decide the disputed question as regards the so-called encroachment on the land of the petitioners though remedy of civil suit is available to the petitioners.
6. Learned advocate Mr. Rawal for the Corporation submitted that as stated in the affidavit-in-reply, to implement the Town Planning Scheme, the competent authority with the help of police cleared the encroachment and handed over the Final Plot No.217 to the petitioner society. He submitted that while handing over the clear and vacant plot to the petitioners, boundary marks were shown to the petitioners Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Aug 13 14:29:02 IST 2017 C/SCA/7792/2016 ORDER and accepting the boundary marks of Final Plot No.217, the petitioners executed possession receipt. Mr. Rawal has shown copy of the possession receipt dated 16.4.2005 for Final Plot No.217, stated to be signed by the Chairman/ Secretary of the petitioner society, wherein it is mentioned that the Final Plot was vacant and the boundary marks were fixed. The copy of the possession receipt is taken on record. Mr. Rawal submitted that once the concerned competent authority had handed over the clear and vacant possession of the final plot to the petitioner society and after having acknowledged the receipt of vacant possession of Final Plot No.217, if the land is encroached upon subsequently by some persons, it is for the petitioners to avail of appropriate remedy against the encroachers before appropriate forum and they may not be permitted to invoke writ jurisdiction of this Court as the Court while exercising the powers under Article 226 of the Constitution of India may not enter into the disputed questions of fact as regards alleged encroachment on the land of the petitioners.
7. The Court having heard learned advocates for both the sides, finds that though it is alleged by the petitioners that they were not given clear and vacant possession of Final Plot No.217 as no boundary marks were fixed by the competent authorities while handing over possession of Final Plot No.217, however as stated in the affidavit-in-reply filed on behalf of the Corporation, the petitioners got vacant possession of Final Plot No.217, and signed possession receipt. The possession receipt bears the contents that, 'Final Plot No.217 was vacant and persons signing the possession receipt on behalf of the petitioner society had seen the boundary marks fixed on Final Plot No.217'. Such contents of the possession receipt would go to show that the petitioner society acknowledged the receipt of vacant possession of Final Plot No.217 after having found that the boundary marks were placed on Final Plot No.217. Such possession Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Aug 13 14:29:02 IST 2017 C/SCA/7792/2016 ORDER was handed over to the petitioner in the year 2005 and it is too late for the petitioner to say that when the possession was handed over, there were no clear boundary marks placed for Final Plot No.217. It is required to note that the Corporation has taken a clear stand that after the possession was handed over to the petitioner society of Final Plot No.217, it was for the petitioner society to protect the possession of Final Plot No.217 and if anybody has encroached on any part of the land of Final Plot No.217, including the common plot, it would not be the obligation of the Corporation to remove such encroachment. The Court finds no unreasonableness in taking such stand by the Corporation. As per the affidavit-in-reply filed by respondent No.8, the respondent Nos.4 to 8 are allotted plot admeasuring 112.3 Sq. Mtrs. by the Housing Board. But, they are also alleged to have encroached the common plot of the petitioners which forms part of Final Plot No.217. If what is alleged against the respondent Nos.4 to 8 is correct, the remedy for the petitioners is to approach the appropriate forum to seek relief for removal of the encroachment alleged to have been made by the respondent Nos.4 to 8 and they cannot be permitted to seek such relief under the guise that when the petitioners were given possession of Final Plot No.217, no proper boundary marks were placed on Final Plot No.217, by invoking the writ jurisdiction of this Court. The Court in the facts of the case is of the view that for the grievance voiced as regards encroachment on common plot of the petitioners, the Court may require deciding of disputed questions of fact and therefore the petition for giving direction in this regard is not to be entertained under Article 226 of the Constitution. The petition is therefore, not entertained and stands rejected, leaving it open to the petitioners to avail of alternative remedy before appropriate forum for removal of the encroachment from their private land. Notice is discharged.
Sd/-
Page 6 of 7HC-NIC Page 6 of 7 Created On Sun Aug 13 14:29:02 IST 2017 C/SCA/7792/2016 ORDER (C.L.SONI, J.) Omkar Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Aug 13 14:29:02 IST 2017