Gujarat High Court
Pankajbhai Tulsibhai Parmar vs State Of Gujarat & 2 on 26 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/24631/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 24631 of 2005
TO
SPECIAL CIVIL APPLICATION NO. 24642 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PANKAJBHAI TULSIBHAI PARMAR....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR PM BHATT, ADVOCATE for the Petitioner(s) No. 1 - 1.1.2 , 1.2 - 1.9
MR RAKESH PATEL, AGP for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 26/04/2017
COMMON ORAL JUDGMENT
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1. Heard Mr.Bhatt, learned advocate for the petitioners and Mr.Patel, learned AGP for respondents No.1 to 3.
2. Learned advocate for the petitioners and learned AGP for the respondents also submitted that the petitions are similar and identical and the petitioners have approached this Court with similar grievance and for identical relief. In view of the said submission and statement by learned advocate for the petitioner and learned AGP for the respondents, the petitions are heard and decided by this common judgment.
3. Since the relief/s prayed for in all petitions, as declared by learned advocate for the petitioners, are similar and identical, illustratively the relief/s prayed for in Special Civil Application No.24631 of 2005 are quoted hereinbelow:
"26(B) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, quashing Page 2 of 18 HC-NIC Page 2 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT and setting aside the entry No.3247, AnnexureI to this petition, mutated in record of rights, i.e. village form no.6 on 12.05.1999 and certified on 24.09.1999, in so far as it concerns subentry at Sr.No.8 against the name of Jiva Madha, concerning revenue survey No.333/1 paiki reconstituted as F.P. No.85, T.P. Scheme No.1 - Ranip admeasuring 875 sq.mtrs. And be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, to quash and set aside said particular entry in so far as it concerns land in question, with further writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus to cancel said entry and to make appropriate rectification in Form No.6 in entry No.3247.
(C) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, declaring the action of the respondents herein in not granting application dated 08.03.2000, 15.12.2004 and 28.11.2005 as being exfacie illegal, unlawful, arbitrary and violative of Article 14 of the Constitution of India, in so far as consequently amendments / rectifications have not been made in the revenue record;
(D) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, commanding the respondents, more particularly respondents No.2 and 3 herein to rectify village Form No.7/12 in so far as it concerns land of survey No.333/1, F.P. No.85 and T.P. Scheme No.1 - Ranip, so as to show name of the petitioners in entry No.3018 in the first column of occupier i.e. possessor instead of being shown in the second column meant for other rights, and be further pleased to direct the respondents to make necessary rectification and/or correction in the revenue record;
(E) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, commanding the respondents, more particular respondent nos.2 and 3 to make appropriate rectification and/or correction int eh revenue records so as to reflect the names of the petitioners as owners, occupiers and possessors of the land in question and to reflect mutation entry No.3018 in the revenue records;"
4. A glance at the relief prayed for in the petition, brings out that without following Page 3 of 18 HC-NIC Page 3 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT procedure prescribed for mutation of entry in the revenue records and/or for cancellation of any entry in revenue record and/or for any correction / alteration / modification of entry in the revenue records, the petitioners have taken out present petition and the petitioners seek direction from the Court that the concerned authority should mutate entry in the revenue records as desired by the petitioners.
5. Unless and until the procedure prescribed by law for mutation of entry in revenue record and/or for any correction / alteration / modification of entry in the revenue records is followed and complied, any correction / alteration / modification of entry in the revenue records cannot be made and the Court would not grant such direction to any authority, more particular when it is noticed that requisite and prescribed procedure is not followed.
6. Therefore, as such, the reliefs prayed Page 4 of 18 HC-NIC Page 4 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT for by the petitioners do not deserve to be granted.
6.1 However, in light of the submissions by learned advocate for the petitioners, it appears that it would not be out of place to take into account some of the facts which are narrated by the petitioners in the memo of petition.
7. It appears that certain parcels of land out of the land bearing Survey No.333/1 paiki came to be declared as surplus in accordance with the provisions under the Urban Land (Ceiling and Regulation) Act, 1976 ('the Act' for short). 7.1 Out of the total parcels of land which came to be declared surplus as aforesaid and which vest in the government in accordance with the provisions of the Act, the Government, upon applications under Section 23 by the petitioners for allotment of land to weaker sections, allotted 8,757 sq.mtrs. out of Survey No.333/1.
7.2 Thereafter the said parcel of land was
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bifurcated in subplots of 25 sq.mtrs. Each and subplots were allotted to the petitioners. 7.3 According to the petitioners, possession of the land was handed over to the petitioners. According to the claim and allegation by the petitioners even their names were mutated in the revenue records.
7.4 However, the petitioners claim that their names were entered into in second column of the revenue records instead of first column. 7.5 The petitioners have further alleged and claimed that after sometime another entry came to be mutated in revenue records whereby the land which was allotted to the petitioners under Section 23 of the Act is shown as that of Government. The petitioners have also alleged that the subentry was made whereby the name of the original owner of the land in question (i.e. Jiva Madha) is mutated in the revenue records.
8. It appears that in the aforesaid factual Page 6 of 18 HC-NIC Page 6 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT background, the petitioners, through power of attorney holder, submitted an application somewhere in 2000 to the Talati to make rectification / correction in Mutation Entry.
9. According to the petitioners, the competent authority has not taken any action in connection with the said application.
10. The petitioners have also claimed and alleged that after the allotment was made, the petitioners deposited the amount which was required to be paid. The petitioners have further alleged and claimed that they have also executed the declaration as required by the authority.
11. The petitioners allege that despite the reminders by the petitioners in December 2004 and November 2005, the application has remained pending before the competent authority.
12. At this stage, it would also be appropriate to take into account the affidavit filed by the Competent Authority, ULC, Ahmedabad.
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In the said affidavit, the deponent has averred and stated that:
"6.1 I most respectfully state that it is correct that the petitioners are sought to be allotted the land in question being coming from weaker section of the society. I state that the land in question was acquired by the State Government under the provisions of the Urban Land (Ceiling and regulation) Act, 1976 (hereinafter referred to as the "ULC Act" for short). I state that Section23 of the ULC Act contemplates various means for disposal of the lands so acquired by the State Government under operation of the Act. I state that in the instant case, the lands so acquired by the State Government under the provisions of the ULC Act, was sought o be allotted in favour of the members of the weaker section of the society for their residential use as per Section23 of the Act and accordingly after processing applications of the petitioners herein, the State Government was pleased to pas the order under Section23 of the Act allotting the same in favour of the petitioners herein. I state that as stated by the petitioner in the memo of petition, the land in question were sought to be allotted to the petitioners way back in the year 1994. I state that the petitioners have annexed copies of the order of allotment issued by the State Government in favour of the allottees at page36 onwards in the memo of petition. I state that however, the petitioners herein have not carried out construction over the land in question pursuant to the allotment so made. I state that at this juncture it would be relevant to note that in the order of allotment, the State Authority have included certain conditions, more precisely, Condition 6 contemplates and requires such individual allottee to complete the construction within period of two years whereas in the instant case, the petitioners herein have not carried out and completed any construction over the land in question and therefore, it can be gainsaid that the petitioners herein have acted in utter disregard of the terms and conditions of the order of allotment which was made by the State Authorities in favour of the petitioners. I state that after allotment was made in favour of the petitioners in the year 1995, the petitioners herein were bound to carry out necessary construction within prescribed time limit as stipulated in the aforesaid order of allotment issued by the State Government in favour of the allottees."
13. From the details mentioned by the Page 8 of 18 HC-NIC Page 8 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT authority in above quoted paragraph No.6.1 of the affidavit, it has emerged that according to the case of the respondents, the petitioners have, after allotment of the land, not complied the conditions attached to the allotment and the petitioners have committed breach of said conditions.
14. Besides the facts and details mentioned by the authority in paragraph No.6.1 of the affidavit, the authority has also averred and stated that:
"6.2 I state that at this stage it would be further most relevant to note that the petitioners herein have preferred the captioned petition ventilating the grievance and seeking direction to the effect that their names may be entered into in the first column of record of right of revenue record of village Ranip. However, such delayed and belated relief in my humble submission does not deserve to be granted in view of the prevailing Government policy which contemplates that wherever the allottees have not carried out any such construction, necessary steps may be taken to take over possession of the land and if any such allottees who have not carried out construction, if makes an application to the State Authority, the State Authority as per the 15 Point Programme of the Hon'ble Chief Minister, be given constructed houses to such poor people. I state that at this stage it would be relevant to note that after the ULC Act was repealed by introduction of Urban Land (Ceiling and Regulation) [Repeal] Act, 1999, the State Government have come out with various policies for providing houses to the urban poor. I state that initially by way of issuing Resolution dated 6.10.1999, the State Government came out with the policy for allotment of the constructed Page 9 of 18 HC-NIC Page 9 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT house with necessary amenities to the weaker section of the society.
6.4 At this juncture, it would be most relevant to note that finally the State Government has come out with policy vide Government Resolution being G.R.No.ULC / 2304/848/VI dated 12.7.2004 which clearly contemplates that in case where the allottees who have not carried out construction over the land which came to be allotted to them in the capacity of the person/s coming from the weaker section of the society and belong to the category of urban poor, in such cases, such beneficiaries may not be permitted to carry out any construction of their houses over said land. It was also further resolved that those who have been allotted the plots before 30.3.1999, in case of such allottees / beneficiaries, if such beneficiary applies with necessary documentary evidence including the ration card etc. then in that case, their names may be forwarded to the agencies which will carry out construction of the houses which can be allotted to the persons. I state that it is further resolved in the aforesaid Government Resolution dated 12.7.2004 to the effect that instructions may be given to the concerned TalaticumMantri to the effect that the names of such allottees may not be entered in the Village Form No.7/12. I state that the aforesaid Government Resolution dated 12.7.2004 contemplates the prevailing Government Policy in case of persons like the petitioners herein. Hence, in view of the policy decision taken by the State Government, in my humble submission, this Hon'ble Court may not interfere with the same and the claim so made by the petitioners herein being thoroughly misconceived, deserves to be dismissed at the threshold. Therefore, in my humble submission, the challenge made by the petitioner in this petition at this stage does not deserve to be entertained and the present petition deserves to be dismissed at the threshold."
15. In addition to the details mentioned in the reply affidavit by the concerned authority, learned AGP also relied on the order dated 7.10.2004 passed by this Court in Special Civil Application No.13897 of 2014. The petitioners had Page 10 of 18 HC-NIC Page 10 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT filed said petitions with grievance that even after allotment of land (plot 25 sq.mtrs.) under Section 23 of the Act, possession was not handed over to the petitioners. In the said petition, i.e. Special Civil Application No.13897 of 2014, the concerned petitioners prayed that:
"4. In present petition the petitioners have prayed, inter alia, that: 18 (B) THIS HONOURABLE COURT may be pleased to issue a writ of mandamus or other appropriate writ, order or direction in nature of mandamus directing the state Authorities that the physical possession of land as per the allotment order of revenue authority admeasuring 25 Sq. Mtrs., be granted to the petitioner.
(C) THIS HONOURABLE COURT may be pleased to issue a writ of mandamus directing to the respondents to undertake the procedure for compliance against the receipt issued by State authority to the petitioner and handover the possession of admeasuring 25 Sq. Mtrs., land granted from plot forthwith.
OR to allot the house under the government policy 12/07/2014 and considered the case of the petitioner by allotting to the house under the affordable Housing Scheme scheme is available to the government in lieu of the plot."
16. After considering the grievance and allegation by the petitioners and after taking into account the submissions by learned AGP, this Court observed and directed that:
"6. At the time of hearing learned advocate for the petitioners heavily relied on the communication / order passed by the competent authority and Additional Page 11 of 18 HC-NIC Page 11 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT Collector, Urban Land Ceiling, Ahmedabad in October 1992.
6.1 According to the said communication, the petitioner is allotted plot of 25 Sq. Mtrs., out of survey number 455/2, at Chandkheda.
6.2 According to the said communication / order the petitioner was informed that possession of the plot will be handedover to him on 21.10.1992.
6.3 It is the case and allegation of the petitioner that despite said communication / order and though almost 30 years have passed since the said order, the authorities have yet not given vacant possession of the plot in question, as per assurance and order passed in October 1992.
6.4 The order passed in favour of petitioner No.2 is placed on record at page 15.
7. Learned advocate for the petitioners submitted that similar orders have been passed in favour of other petitioner as well.
7.1 It is also claimed that the petitioners have already paid requisite amount of Rs.250/ along with Chalan, in the State Bank of India.
7.2 According to the learned advocate for the petitioners despite repeated request by the petitioners, any action in pursuance of the above referred orders passed in October 1992 has not been taken. Learned advocate for the petitioners submitted that the petitioners also made representation before Honourable Chief Minister and from the office of the Honourable Chief Minister, a communication dated 3.7.2014 was forwarded to the office of the Collector. Learned advocate for the petitioners relied on the documents placed on record at annexureC and submitted that thereafter the papers were forwarded to the concerned authority however, until 11.7.2014 the petitioners did not receive any intimation and suddenly vide communication dated 11.7.2014 the respondent corporation informed the petitioners that at present any scheme of allotting land under Urban Land Ceiling and Regulation Act, 1976 (hereinafter referred to as the ULC Act) is not in force, and that therefore the petitioners' request cannot be considered.
7.3 Learned advocate for the petitioners submitted that certain similarly situate persons had taken out petition being Special Civil Application No. 15167 of 2012 which came to be disposed of by this Court vide Page 12 of 18 HC-NIC Page 12 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT order dated 4.3.2014.
8. It is not in dispute that the decision to allot plot admeasuring 25 Sq. Mtrs. came to be passed in favour of the petitioners in October 1992.
8.1 Before proceeding further it is relevant to mention that Mr. Mehta, learned AGP and Mr. Chhaya, learned advocate for the respondent corporation, submitted that the respondent State has discontinued / modified the scheme under ULC Act and modified scheme of allotting constructed houses instead of the plot admeasuring 25 Sq. Mtrs, is introduced.
8.2 Learned Counsel for the petitioners submitted that if the scheme / policy of Government under which the above mentioned decisions were passed in October 1992 are modified and such modified scheme / policy is made applicable then appropriate action atleast in accordance with such modified / policy / scheme should be taken, however, the respondent corporation and the State Government cannot ignore the application / request by the petitioners and cannot deny to take any final decision and action with regard to the request by the petitioners.
8.3 In this context the Court has made certain observations in paragraph No.5 of the order dated 4.3.2014 which shall be taken into account by the respondent corporation as well as State Government while taking appropriate and requisite decision with regard to petitioners' case.
8.4 It is needless to state that since respondent corporation is implementing authority, it shall take all steps and respondent Nos. 1 to 3 shall act as per its policy so that the respondent corporation can implement the policy / scheme of the State as borne out from the communication / order dated October 1992 and modified subsequently (as observed in the order dated 4.3.2014)
9. In view of the copies of the orders passed in October 1992 in favour of the petitioners which are placed on record of present petition, below mentioned order is passed: The communication dated 11.7.2014 forwarded by the respondent corporation is set aside and the matter is remitted to the respondent Corporation for reconsideration and fresh decision after taking into account the communication / order passed by the competent authority and Additional Collector, ULC Ahmedabad in October 1992.
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The competent authority of respondent Corporation and respondent Nos. 1 to 3 shall take into consideration the said communication and examine relevant facts and circumstances.
If necessary the said authority may ask the petitioners to submit another / fresh application in light of the orders passed in October 1992 and having regard to the said orders, the applicable policy and Scheme of the Government and decision conveyed to the petitioners vide said communication, take appropriate decision and action in accordance with law, applicable rules and regulations and after considering the submission by petitioners as well as order dated 4.3.2014 as expeditiously but not later than six weeks from service of certified copy of present order."
17. In light of the said order and the details mentioned in the affidavit, learned AGP submitted that the concerned authority will have to take into account relevant circulars and more particularly Government Resolution being G.R. No.ULC/2304/848/VI dated 12.7.2004.
18. At this stage, it will not be out of place to take note by certain facts which are mentioned by the petitioners:
"14. The petitioners submit that, however, despite the fact that orders of allotment in favour of the petitioners made under provisions of section 23 of the said Act subsists and that though petitioners' names have been mutated as owners vide mutation entry No.3018 dated 15.06.1994 certified on 18.07.1994, and despite the fact that there is no order canceling the said allotment, very surprisingly vide mutation entry No.3247 mutated on 12.05.1999 and certified on 24.09.1999 by the Circle Officer, in so far as it Page 14 of 18 HC-NIC Page 14 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT concerns revenue survey No.333/1 paiki comprised in T.P. Scheme No.1 (Ranip), F.P. No.85 admeasuring 875 sq.mtrs., the name of the Government is shown as having become owner thereof on the basis of the declaration of the land as urban vacant excess land under the Urban Land Ceiling Act on the basis of the Note of the Competent Authority and Additional Collector, ULC, Ahmedabad, Unit 6, Ranip. Obviously, said mutation and the note is without having regard to the fact that not only the land was declared as excess vacant land and that possession thereof was taken, but thereafter by the order under section 23 of the said Act dated 10.06.1994 the land in question has been allotted to the petitioners and the names of the petitioners have been mutated vide mutation entry No.3018 in revenue record of rights i.e. village form No.6.
15. The petitioners at this juncture also beg to submit a lay out plan under signature of the Deputy Town Planning Officer, Ahmedabad, showing lay out of the 11 plots, common plot and open space and internal roads.
16. The petitioners submit that when the said fact came to the knowledge of the power of Attorney of the petitioners - Pankajbhai Tulsibhai Parmar, he made an application to the Talaticummantri dated 08.03.2000, interalia pointing out that the petitioners were allotted land after same was declared as excess vacant land on 15.10.1984, by order dated 25.05.1994. It was pointed out that though plots were allotted by the order of the Government under section 23 of the Act, the names of the petitioners were mentioned in village form No.7/12 in the column meant for other rights. Therefore, a request was made to enter the names of the petitioners in the first column as owners and occupiers. The petitioners also pointed out that the names of the petitioners were entered in the village form No.6 i.e. record of rights at the relevant time, and despite the same, subsequent entry is made vide mutation entry No.3247 as regards land being declared excess in 1984 without regard to the subsequent order of allotment under provisions of the U.L.C. Act itself pursuant to which not only the petitioners were allotted land bu the petitioners are owners and are in possession and occupation thereof and with respect to which a mutation entry has also been made. Said application is received by the Talaticummantri, Ranip City."
19. Above mentioned details also bring out that certain developments including the Page 15 of 18 HC-NIC Page 15 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT development with regard to the town planning scheme have taken place and that, therefore, it would not be just and proper for this Court to pass any directions, much less to grant relief prayed for in present petition without having regard to the said developments and without having regard to the orders which might have been passed in proceedings related to the said town planning scheme and/or without considering any action which might have been taken by the competent authority in furtherance of the town planning scheme.
20. Above discussed aspects have brought out and established that the relief prayed for in paragraph No.26(B) to (E) does not deserve to be and cannot be granted.
21. In this background and having regard to the assertions by learned advocate for the petitioners that the petitioners have submitted application to the Talati, it appears that present petitions can be disposed of with Page 16 of 18 HC-NIC Page 16 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT following observations and directions.
22. Having regard to the fact that the petitioners have submitted application in March 200 which, according to the submission by learned advocate for the petitioners, has not been attended to and has not been processed the petitions deserve to be disposed of with the direction that the concerned and competent authority will take up the said application for consideration and after taking into account the request made in the application and after considering applicable policy as well as any subsequent events which may have taken place after allotment of land to the petitioners and/or after the petitioners file above mentioned application, the competent authority will pass appropriate order in accordance with law and relevant provisions.
23. It is clarified that the competent authority will take necessary decision and pass appropriate order in respect of the said Page 17 of 18 HC-NIC Page 17 of 18 Created On Tue Aug 15 05:49:29 IST 2017 C/SCA/24631/2005 JUDGMENT application filed by the petitioners as expeditiously as possible and preferably within six weeks from the receipt of the certified copy of this common judgment.
24. For the said purpose, the petitioners are permitted to serve certified copy of this common judgment to the concerned authority directly.
With the aforesaid clarifications and observations, the petitions are disposed of. Rule is discharged.
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