Gujarat High Court
Patel Hasmukhbhai Jayantilal vs Secretary Revenue Department on 3 April, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/588/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 588 of 2018
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PATEL HASMUKHBHAI JAYANTILAL
Versus
SECRETARY REVENUE DEPARTMENT
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Appearance:
MR ANSHIN DESAI, SR. ADVOCATE WITH MR DEEPAK N
KHANCHANDANI for the PETITIONER(s) No. 1
DEEPAK N KHANCHANDANI(7781) for the PETITIONER(s) No.
2,3,4,5,6,7,8,9
ADVANCE COPY SERVED TO GP/PP(99) for the RESPONDENT(s) No. 1
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,2,4
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 03/04/2018
ORAL ORDER
After passing order on 15th February, 2018 to issue notice to the respondents, Court had an occasion to consider the matter further today with reference to the affidavits-in-reply filed by the respective respondents in the meantime.
1.1 Further submission from the parties were considered.
2. As far as respondent No.4 - Gujarat Housing Board is concerned, it has taken a stand that in no way it is connected with the controversy and has further pleaded to expunge its impleadment as respondent.
3. In order dated 15th February, 2018, certain aspects of controversy were notice and highlighted as under.
Page 1 of 4 C/SCA/588/2018 ORDER"3. The land bearing Survey Nos.84/1 and 84/2 paiki of village Rua is claimed to be originally belonging to the present petitioners. It is the case of the petitioners that by virtue of order dated 30.11.1987, the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976, treated the said parcels of land along with two other parcels of land bearing Survey Nos.5217-5221-5222 paiki which all admeasured 19670.24 sq.mtrs. under the Ceiling law. Out of this total area, land admeasuring 1670.24 sq.mtrs. was declared to be excess. It is the case of the petitioners that this excess land includes the area of land belonging to the petitioners bearing Survey Nos.84/1 and 84/2 aforementioned. It further appears that the aforesaid order dated 30.11.1987 was challenged before the ULC Tribunal and the judgment of the Tribunal was further made subject-matter of Special Civil Application No.4158/1988. This Court by judgment dated 28.04.1992, maintained order dated 30.11.1987, whereby the aforesaid area of 1670.24 sq.mtrs. of land is treated as excess out of the total area mentioned above.
4. The grievance of the petitioners, inter-alia, is that respondent-Bhavnagar Municipal Corporation has proposed a scheme for construction of houses for the lower income group category and in that the land admeasuring 1670.24 sq.mtrs. treated as excess and which belongs to the petitioners is being utilized. It was submitted that after the construction was started, the petitioners made fanatic efforts by applying to the Corporation and further applying under the Right to Information Act, 2005 and that as a last resort this petition was required to be filed since the construction was being carried out on the excess land, which is of the petitioners.
5. Notice returnable on 27.02.2018.
6. On the next date, interim relief aspect may be considered subject to consideration of the reply and the stand of the respondents."
3.1 In the context of the said aspect and considering the case of the petitioner, following further specific averments and contentions could be noticed from the memorandum of petition. The petitioner has specifically stated as under in paragraph 13.
"Thereafter in the 1994 vide communicated dated Page 2 of 4 C/SCA/588/2018 ORDER 04/02/1994 the State Government decided to accept the order dated 28/04/1992 passed in Special Civil Application No.4158 of 1988 and possession of the Petitioners were never questioned and physical possession of the land in question always remained with the Petitioners."
3.2 In paragraph 14 following contention is raised.
"Even 7/12 extracts and extract of village form no.8-A of the land in question also shows that the possession of the land in question has remained with the petitioners only. Not only that in response to an application dated 03/04/2017 preferred by the Petitioners under RTI, the State Government (Collector) has in its reply has given the details of the land acquired by the State Government and in those details there is no mentioned of the land of the Petitioners in the list of land which is acquired and possession is with State Government. This also substantiates the Petitioner's claim beyond any doubt and establishes that the Petitioners are in possession of the land in question."
3.3 In paragraph 15, it is the say of the petitioner that inspite of the possession of the land being with the petitioner, respondents have floated the scheme and they have deployed machinery on the land to construct over the land. In ground (J) of the grounds, it is stated that it came to the knowledge of the petitioner that respondent No.3 - Bhavnagar Municipal Corporation had encroached upon the land of the petitioner admeasuring about 1670.24 sq. mtrs. It is further averred that it is noticeable from record that piece of land admeasuring 1670.24 sq. mtrs. of original Revenue Survey Nos.84/1 and 84/2 is not in possession of any of the respondents.
3.4 The Collector, Bhavnagar, in capacity of Officer under the Right to Information Act, furnished the information and has further replied that this Page 3 of 4 C/SCA/588/2018 ORDER piece of land was never acquired. It was stated that Collector has given a list of lands acquired which does not include the present land. When the affidavit-in-reply of respondent No.3 - Bhavnagar Municipal Corporation is considered, none of the above aspects has been dealt with or answered. In absence of any answer to the contentions raised by the petitioner and specific case put-forth as above, it could be said that the petitioner has been able to establish a case for interim relief.
4. Since the project is one of construction of houses for the lower income group, before passing any interim order, the Court is inclined to give an additional opportunity to the respondents.
5. Hence, there shall be issued by the Registry a specific notice as to grant of interim relief, returnable on 12th April, 2018.
6. If Bhavnagar Municipal Corporation is willing to respond to the allegations, averments and contentions of the petitioner highlighted above, it may file supplementary reply on or before 09th April, 2018, else the Court will be constrained to deal with the controversy on the basis of the present pleadings and will proceed further in accordance with law, the plea on part of the petitioner to grant interim relief.
7. Direct service is permitted, today.
(N.V.ANJARIA, J) Anup Page 4 of 4