Gujarat High Court
Rajeshbhai Vitthalbhai Sardhara & 13 vs State Of Gujarat & 2 on 17 March, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/5835/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5835 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
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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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RAJESHBHAI VITTHALBHAI SARDHARA & 13....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR PRASHANT DESAI, LD.SENIOR ADVOCATE WITH MR RUTUL P DESAI,
ADVOCATE for the Petitioner(s) No. 1 - 14
MR VR JANI, LD.ASSTT. GOVERNMENT PLEADER for Respondent No. 1
MR JAYANT P BHATT, ADVOCATE for the Respondent No. 2
NOTICE SERVED BY DS for the Respondent No. 3
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 17/03/2016
ORAL JUDGMENT
1. By way of the present petition under Articles 14, Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Mar 20 02:36:11 IST 2016 C/SCA/5835/2014 JUDGMENT 19(1)(g), 21, 300A, etc. of the Constitution of India, the petitioners have prayed as under:
"8(A) This Hon'ble Court may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction directing the Respondent No.2 & 3 to implement the Sanction Town Planning Scheme No.7 (Nanamava)(Final) under section 65 of the Gujarat Town Planning Act,1976 qua the Final Plot of petitioners and thereby handover the possession of Final Plot No.33/2 admeasuring 3,893.11 sq.meters to the petitioners herein and further may be pleased to quash and set aside the impugned letter dated 17th February,2014 issued by the respondent- Corporation refusing to sanction layout plan for Final Plot No.33/2 submitted by the petitioners herein and thereby direct the Respondent No.1 &
2 to sanction the layout plan of Final Plot No.33/2 submitted by the petitioners herein in accordance with law;
(B) Pending the admission, hearing and final hearing of the present petition, this Hon'ble Court may be pleased to direct the respondent-corporation to implement the sanctioned final Town Planning Scheme No.7 (Nana Mava);
(C) Any other and further relief or reliefs to which
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this Hon'ble Court deemed fit, in the interest of justice; may kindly be granted;"
2. Pursuant to the Notice issued to the respondents, respective advocates appeared for the respondents and filed their Replies. Co-ordinate bench of this Court has issued Rule on 12/12/2014, hence, this petition is taken up for hearing.
3. Brief facts, arise from the record are as under:
3.1 The petitioners are the owner of land bearing revenue survey No.28(1)-C in the village NanaMava admeasuring about 5,261 Sq.Meters, which has been given original Plot No.33/2 and against which Final Plot No.33/2 admeasuring 3893.11 Sq.Meters is allotted in the Final Town Planning Scheme No.7 (Nanamava). The original owners of the land bearing survey No.28(1)-c, viz. Babubhai Jayrambhai Babariya and Rameshbhai Ravjibhai Sorathiya sold the land by way of registered sale deed No.2503 dated 04th March,2006 to Ravjibhai Premjibhai Dobariya, Parshottambhai Tapubhai Sanghani and Bhimjibhai Karmanbhai Sagpariya. Thereafter the said owners sold the land by way of registered sale deed No.4 dated 01st January,2013 to the present petitioners and even the revenue records are mutated in the name of present petitioners.
The land bearing Survey No.28(1)-C, which is given original Plot No.33/2 is owned by the present petitioners. Even original owners, viz. Babubhai Jayrambhai Babariya and Rameshbhai Ravjibhai Sorathiya have also executed an agreement with the present petitioners certifying that the Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Mar 20 02:36:11 IST 2016 C/SCA/5835/2014 JUDGMENT present petitioners are the owners of the land bearing survey No.28(1)-C and petitioners are the legal owners of the final plot No.33/2 allotted by the respondent-corporation in the Town Planning Scheme No.7, (Nanamava). Consent letter executed on 02/04/2014 between the original owners viz. Babubhai and Rameshbhai on one hand and the present petitioners on other hand.
3.2 Rajkot Urban Development Authority under section 41 of the Gujarat Town Planning and Urban Development Act,1976 declared its intention of making Town Planning Scheme No.7 (Nana Mava, Rajkot). In the said draft Town Planning Scheme, land bearing revenue survey No.28(1)-C was given original Plot No.33/2 admeasuring 5,261 Sq.Meters against which Final Plot No.33/2 admeasuring 3,893.11 Sq.Meters was allotted to the petitioners pre-decessor in title. Thereafter under section 48(1) of the Act, Rajkot Urban Development Authority sent the draft Town Planning Scheme to the State Government for its sanction. Thereafter on 6th September,1994 the State Government by exercising its power conferred under sub-section (2) of Section 48 of the Act, sanctioned the said draft Town Planning Scheme sent by the Rajkot Urban Development Authority.
3.3 In the said draft Town Planning Scheme No.7 (Nana Mava), petitioners' land bearing survey No.28(1)-C was given original Plot No.33/2 admeasuring 5,261 sq.meters and on the same land, Final Plot No.33/2 admeasuring 3,893.11 Sq.Meters was reconstituted and was allotted to the petitioners' pre-decessor in title.
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3.4 Thereafter in exercise of powers conferred under
section 50 of the Act, respondent no.1 appointed Town Planning Officer for preparing preliminary Town Planning Scheme as required under section 52(2) of the Act. Thereafter, the Town Planning Officer prepared preliminary Town Planning Scheme No.7 (Nana Mava) which was sent to the State Government for sanction under section 64 of the Act,1976. Thereafter, in exercise of powers conferred under section 65 of the Act,1976 respondent No.1 by its Notification dated 20the September,2007 sanctioned the said preliminary Scheme with modifications, wherein petitioners' Final Plot No.33/2 in lieu of Original Plot No.33/2 was deleted and was allotted to respondent-corporation for sale for commercial and allotment of Final Plot No.33/B to respondent corporation for sale for commercial was deleted and was allotted to the petitioners in lieu of their original Plot No.33/2. Even the final Town Planning Scheme under section 65 of the Act is already sanctioned by respondent No.1 and therefore, in light of the provisions of section 65 of the Act, it has become the part of the Act as if enacted in the Act.
3.5 Thereafter, the city limits of the respondent No.2 was extended and the area was included in the Respondent No.2 and therefore since the preliminary Town Planning Scheme came to be sanctioned under section 65 of the Act, and the Respondent No.2 being the implementing authority of the said Town Planning Scheme No.7 (Final), petitioner No.7 being the co-owner as well as on behalf of all the other owners of Final Plot No.33/2 vide his letter dated 16 th January,2014 requested the respondent-corporation to sanction the layout plan of the Final Plot No.33/2, since the petitioners are now Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Mar 20 02:36:11 IST 2016 C/SCA/5835/2014 JUDGMENT the owners of the said Final Plot No.33/2 in light of preliminary Town Planning Scheme being sanctioned under section 65 of the Act. Even Final Town Planning Scheme has been sanctioned by the State Government.
3.6 Respondent-Corporation by its impugned letter dated 17th February,2014 reject the petitioner no.7's application for sanctioning the layout plan on the ground that since the petitioners have not handed over possession of original plot no.33/2, petitioners' layout plan of Final Plot No.33/2 cannot be sanctioned by the respondent-Corporation. Petitioners herein have never objected to handing over the possession of its original plot no.33/2, and even the respondent no.2 has never issued any notice as prescribed under the Act,1976 to the petitioners herein for handing over the possession of its original plot No.33/2.
4. Mr.P.J.Desai, learned Senior Advocate assisted by Mr.R.P.Desai, learned advocate appearing for the petitioners, has submitted that though preliminary scheme is sanctioned by State of Gujarat way back on 20/09/2007 and piece of land, which have been allotted to the petitioners in the scheme, peaceful and vacant possession thereof are not handed over to the petitioners. He would submit that the respondent authority is now implementing the scheme and there are ample power with the appropriate authority to implement the scheme, as provided u/s.67 of the Act. Say of the appropriate authority i.e. Rajkot Municipal Corporation that peaceful and vacant possession of the land should be handed over only if peaceful and vacant possession of the original plots belonging to the petitioners, which have been already vested in the Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Mar 20 02:36:11 IST 2016 C/SCA/5835/2014 JUDGMENT appropriate authority be given to it, is not tenable since the petitioners have lost their titles over their properties. He would submit that appropriate authority has power to evict the encroachment u/s.68 of the Act. He would submit that land upon which the alleged encroachment is made, has been vested in the appropriate authority and petitioners have no right, title and interest in the said property and, therefore, they cannot evict the person, who alleged to have encroached the property. He would submit that the authority can take appropriate steps under the Act as well as Rules thereof, to evict the encroachers or those persons, who are occupying the land of which, they are not entitled to occupy the same since the preliminary scheme is sanctioned by the State of Gujarat.
In support of his submission, he has relied upon decision rendered by Hon'ble Supreme Court in the case of Municipal Corporation of Greater Bombay V/s. The Advance Builders (India) Pvt. Ltd. reported in AIR 1972 SC 793 as well as in the case of Amarsinh Shanaji Thakore V/s. State of Gujarat reported in (2004)7 G.H.J. 127.
By making above submissions and relying upon above decisions, learned advocate appearing for the petitioners would submit that the petition may be allowed and appropriate authority may be directed to implement the scheme.
5. On the other hand, Mr.Jayant P. Bhatt, learned advocate appearing for respondent No.2 - Rajkot Municipal Corporation has submitted that land, originally belonging to the petitioners, has been encroached and, therefore, the Corporation is right in refusing to hand over possession of Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Mar 20 02:36:11 IST 2016 C/SCA/5835/2014 JUDGMENT final plot to the petitioners unless a peaceful and vacant possession of the land of the petitioners, is handed over to the authority. Hence, this petition is required to be dismissed.
6. I have heard learned advocates appearing on behalf of the respective parties. The undisputed fact in the case on hand is that preliminary scheme has been sanctioned by the State in the year 2010 and Notification u/s.65 of the Act has also been published in the year 2013. It is an undisputed fact that once preliminary scheme is sanctioned, the land vests in the appropriate authority as per the plan and, therefore, the person, who was owner of the property, prior to sanctioning of the scheme, cannot take any action since he has no right, title and interest over the said property. Apart from the said aspect, Section 68 of the Act empowers the authority to summarily evict any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme.
7. It has been held by Hon'ble Apex Court in the case of Municipal Corporation of Greater Bombay (supra) that appropriate authority is under an obligation to perform its duty in accordance with the provisions of the Town Planning Act. In the said case, it has been held that responsibility of removing the huts, sheds, stables and other temporary structures which contravene the scheme is that of the Corporation and not of the owners of the plots.
In the case of Amarsinh Shanaji Thakore (supra), co-ordinate bench by relying upon the decision of Municipal Corporation of Greater Bombay (supra) directed the authority to hand over the peaceful and vacant Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Mar 20 02:36:11 IST 2016 C/SCA/5835/2014 JUDGMENT possessions of the plots to the petitioners within prescribed period. Therefore, in my opinion, ratio laid down by the Hon'ble Apex Court as well as co-ordinate bench of this Court are squarely applicable in the facts and circumstances of the present case. Therefore, this petition is required to be accepted. Hence, the petition is partly allowed.
The respondent Corporation is hereby directed to implement the scheme in question as expeditiously as possible and preferably within a period of six months from the date of receipt of copy of this order.
Rule is made absolute to the aforesaid extent. No costs. Direct service is permitted.
[A.J.DESAI,J.] *dipti Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Mar 20 02:36:11 IST 2016