Gujarat High Court
Dhanjibhai Tapubhai Patel vs Gujarat Industrial Development ... on 17 March, 2020
Equivalent citations: AIRONLINE 2020 GUJ 531
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/9581/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9581 of 2014
with
CIVIL APPLICATION NO. 01 of 2019
with
CIVIL APPLICATION NO. 01 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DHANJIBHAI TAPUBHAI PATEL & 7 other(s)
Versus
GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION & 1 other(s)
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Appearance:
MR RAJESH SAVJANI for the Petitioner(s) No. 1,2,3,4,5,6,7,8
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 17/03/2020
CAV JUDGMENT
1. Rule. Mr. Chinmay Gandhi, learned advocate for the respondents waives service of Rule.
2. In this petition under Article 226 of the Constitution of Page 1 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020 C/SCA/9581/2014 CAV JUDGMENT India, the prayer of the petitioners read as under:
"6(A) To admit this petition;
(B) To issue appropriate writ, order or direction directing some independent agency to investigate into the affairs of respondent No.2 particularly regarding allotment of plots in GIDC Jamnagar Industrial Estate and submit a detailed report thereof;
(C) To issue appropriate writ, order or direction cancelling all the allotments of common plots and plots which are allotted illegally to undeserving persons forthwith;
(D) During pendency and final hearing of this petition, to restrain the respondent No.2 from proceeding further with allotment of any further plots and common plots without following the procedure of calling for tenders or auction process for allotment of plots and to submit the details of the common plots allotted by it;"
3. It is the case of the petitioners that the Gujarat Industrial Development Corporation has been created under the Act with the object to secure orderly development of industries in industrial areas in the State. It is the case of the petitioners that an industrial estate has been setup in Jamnagar and accordingly several parcels of land had been acquired. The grievance made by the petitioners is that there are several common plots which are part of the industrial estate which are to be allotted by following the process of auction or tender in order to fetch the best possible price. The case of the petitioners is that they are the plot holders within the estate of Jamnagar and the common plots are being Page 2 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020 C/SCA/9581/2014 CAV JUDGMENT allotted without following the process of auction. It is their case that such allotments is being done without following the due procedure and calling for auction and or tender. 3.1 It is the further case of the petitioners that within the GIDC, Jamnagar, several allottes of plots after allotment have not set up and/or established industries and by such non usage of plots, deserving allottees have been deprived of using such plots. It is in this context that the petitioners have made the above prayer.
4. Mr. Savjani, learned advocate for the petitioners submitted that under the Right to Information Act, 2005, when information was sought with regard to let out plans of the plots and whether any request was pending with the Jamnagar Area Development Authority, the response to the RTI Application was in the negative. He would also rely on a communication of February, 2013 of the Jamnagar Area Development Authority and submit that there was no sanction to the let out plans of the common plots.
4.1 Mr.Savjani, learned advocate for the petitioners, would further submit that the petitioners, who are entitled as plot holders, to see that common plots are not utilized contrary to Page 3 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020 C/SCA/9581/2014 CAV JUDGMENT the intention, has approached this Court for the reliefs as aforesaid. In support of his submissions, Mr.Savjani, learned advocate for the petitioners, relied on the following decisions:
(i) Harikrishnadas Chhaganlal Nanalal and Ishwardas Mohanlal (Seva Samaj Trust) vs. Vinodchandra G. Vaghela and Anr., reported in 2010 (1) GLH 710., to submit that it is undisputed that as far as common plots and common facilities are concerned, the interest of the allottees is common.
(ii) Decision dated 10.12.2010 in the case of Yogesh Mahadevia vs. Ahmedabad Municipal Corporation., rendered in Special Civil Application No. 15776 of 2010 to submit that usage of common plots in contravention of the spirit of such allotment would be illegal.
(iii) Kiritbhai Manibhai Patel vs. State of Gujarat, reported in 2015 JX(Guj) 78, to submit that there is no question of deemed fiction under Section 29(4) of the Gujarat Town Planning and Urban Development Act.
(iv) Sarvesh Atulbhai Gohil vs. Jamnagar Urban Development Authority and Ors., reported in 2014 (2) GLH 26, to support the submission that Page 4 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020 C/SCA/9581/2014 CAV JUDGMENT unauthorized usage of common areas and common spaces must be depricated.
(v) Decision dated 23.09.2019 in the case of Adinath Sthankvasi Jain Religious Trust vs. Nalanda Co-
operative Hosg. Society Ltd & Ors., rendered in Letters Patent Appeal No. 1000 of 2016 in support of his submission that lands which are reserved for a particular purpose must be utilized for that purpose only.
(vi) Decision of the Supreme Court in Civil Appeal No. 7243 of 2019 in the case of The Bihar State Housing Board & Ors., vs. Radha Ballabh Health Care and Research Institute (P) Ltd., para 3 thereof was relied upon to contend that public property cannot be disposed of at the whims of the authorities.
5. Mr. Chinmay Gandhi, learned counsel appeared for the Gujarat Industrial Development Corporation and drew the attention of this Court to the affidavits filed on its behalf. He would submit that the direction as prayed for by a writ of mandamus cannot be issued.
5.1 According to Mr. Gandhi, learned counsel, the petition is motivated as one of the petitioners' son had applied for Page 5 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020 C/SCA/9581/2014 CAV JUDGMENT allotment to the State Government for land bearing Survey No. 140 and since the land was situated in the GIDC, Jamnagar Industrial Estate, no NOC was required from the GIDC. The petitioners' son had applied for land through two different entities. The Corporation informed the applicants that the concerned survey no. was required by the GIDC and no objection could not be granted. It is on account of these facts that this present petition is filed.
5.2 Mr. Gandhi, learned counsel, would further submit that the petitioners No. 1 and 2 have no plots, whereas the petitioner No.3 has been allotted plot No. E246 as proprietor. Petitioner No.4 is having partnership firm and so is petitioner No.5. Petitioner No.6 has not been allotted any plot. An additional affidavit has also been filed by the GIDC and it is explained in such affidavit as under:
"3 That the common plot No.3989 was proposed to be sub-divided into six industrial plots Nos. 3989/1 to 3989/6 of the area admeasuring 970 sq.mtrs., each. But, the same was not incorporated by the Competent Authority i.e. JADA in the DD Plan.
4 I further say and submit that in the industrial area Jamnagar-3 Plot No. 3985 admeasuring 12553.77 sq.mtrs., which was given to Rajhans Alloys Private Limited and in that plot there was an expansion sought for and therefore, plot No. 3989 was to be allotted and therefore, for expansion of the business a demand was made by the said Rajhans Alloy Private Limited to allot 3989 and for Page 6 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020 C/SCA/9581/2014 CAV JUDGMENT which he had made an on-line application dated 03.07.2012. Along with the application he had sent the Memorandum of Articles of Association, Income-Returns for the last three years, PAN Card, Electricity Bill as well as approved plans as well as the resolution of the Board. The Plot No.3989 admeasures 5820 sq.mtrs., out of which 4850 sq.mtrs was proposed to be allotted to the said party i.e. Rajhans Alloy Private Limited. In the present case, the details are as under:
5 The allottee was holding original industrial unit in Jamnagar Industrial Estate-I bearing Plot No.21/3 admeasuring 418.20 sq.mtrs., and that industry Rajhans Alloy Private Limited is established since July, 1987. That thereafter, in the Industrial Estate-3 the following plots have been obtained by the said party by different transfers.
6 That four different plots of different areas were amalgamated by the order of amalgamation dated 22.10.2010 and in all 11 plots were allotted, which was given after amalgamation of plot No.3985 as per order dated 21.02.2011 and accordingly, the rectification is made in the Development Plan way back on 28.02.2011. The details of different plots referred to hereinabove are as under:
(i) Plot Nos.4002 and 4003 admeasuring 1940 sq.mtrs., transferred on 10.10.2008.
(ii) Plot Nos. 4004-4008 admeasuring 6733.77 sq.mtrs transferred on 10.10.2008.
(iii) Plot Nos. 3985 and 3986 admeasuring 1940 sq.mtrs., transferred on 16.12.2009.
(iv) Plot Nos. 3987 and 3988 admeasuring 1940 sq.mtrs., transferred on 16.12.2009."
5.3 What is pointed out by Mr. Gandhi in paras 3 to 6 of the affidavit-in-reply is that the entire asset area measured 15,07,064.63 sq.mtrs., and the required common plot at 5% per prevailing GDCR is 75,953.23 sq.mtrs. The GIDC had retained 76,346.79 sq.mtrs, therefore, it was holding 393.55 Page 7 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020 C/SCA/9581/2014 CAV JUDGMENT sq.mtrs in excess. Even after the allotments made to Rajhans Alloy Private Limited, there is no reduction in the total common plot area. It is in this background that the commercial plot Nos. 4365 and 4366 admeasuring 7088.83 sq.mtrs out of which land admeasuring 4457 sq.mtrs was kept as a common plot. Reliance is also placed on an additional affidavit filed on 15.02.2020 pointing out that as way back as on 05.01.2017, the GIDC had written a letter to the Jamnagar Municipal Corporation for the purpose of change in the common plot invoking Section 29 of the Gujarat Town Planning Act. Mr.Gandhi, learned advocate, would submit that there is a deemed approval as no reply has been received from the Jamnagar Municipal Corporation. He also submitted that the plans of the authority are already sanctioned on plot No.3989 and constructions have been put up.
6. Considering the submissions made by the learned counsels appearing for the respective parties, what appears on appreciation of the entire controversy is that some of the petitioners are neither allottees of the plots in the GIDC whereas some of the petitioners are allowed some portions. Perusal of the affidavit-in-reply would indicate that on an application made by one Rajhans Alloy Private Limited for expansion of business, the GIDC made the allotments which Page 8 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020 C/SCA/9581/2014 CAV JUDGMENT have been referred to in the affidavit-in-reply and have been reproduced hereinabove. As per the stipulated prevailing GDCR, the affidavit-in-reply indicates that there is no breach in maintaining the required area of common plot of the GIDC. Even on 05.01.2017, a request was made by the GIDC that sanction be given to the plans. Reading Section 29, sub- section 4 of the Gujarat Town Planning and Urban Development Act would indicate that when there is a failure to communicate the reasons for rejecting of the application, permission is deemed to have been so granted. Section 117 of the Act has an overriding effect on the other laws. Keeping these legal provisions in mind, what is found is that there is sufficient explanation in the affidavit-in-reply regarding allotment of land in the area of the common plots and the GIDC has not contravened the required reservation for keeping open a stipulated area.
7. Accordingly, the petition is dismissed. Rule is discharged. In view of dismissal of the main matter, civil applications do not survive and stand disposed of, accordingly.
(BIREN VAISHNAV, J) DIVYA Page 9 of 9 Downloaded on : Wed Mar 18 02:13:55 IST 2020