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[Cites 2, Cited by 0]

Gujarat High Court

Manjibhai Muljibhai Parmar vs State Of Gujarat on 19 September, 2019

Author: Vipul M. Pancholi

Bench: Vipul M. Pancholi

      C/SCA/12775/2016                                     CAV JUDGMENT



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO.              12775 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI                      :        Sd/­

=======================================================

1    Whether Reporters of Local Papers may be                         YES
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                          YES

3    Whether their Lordships wish to see the
     fair copy of the judgment ?                                       NO

4    Whether this case involves a substantial
     question of law as to the interpretation
     of the Constitution of India or any                               NO
     order made thereunder ?

=======================================================
        MANJIBHAI MULJIBHAI PARMAR & 61 other(s)
                          Versus
              STATE OF GUJARAT & 5 other(s)
=======================================================
Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No.1­62
MS JIRGA JHAVERI AGP for the Respondent(s) No.1­6
=======================================================

CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

                         Date : 19/09/2019

                              CAV JUDGMENT

1. Rule. Learned AGP Ms. Jirga Jhaveri waives service of notice of Rule for respondent - State.

2. This petition is filed under Article 226 of the Constitution of India as well as under the Page 1 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT provision of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("Disability Act" for short), in which, the petitioners have prayed that the respondents be directed to allot the land to the petitioners as per their applications out of the land bearing Survey No.618 of Village : Chela, District : Jamnagar on the basis of the price, which is fixed by the District Valuation Committed in its meeting dated 07.02.2009.

3. Looking to the issue involved in the present petition and with the consent of learned advocates appearing for the parties, the present petition is taken up for final disposal.

4. Heard learned advocate, Ms. Megha Jani for the petitioners and learned AGP Ms. Jirga Jhaveri for the respondents.

5. Factual matrix of the present case is as under, 5.1 The Government of Gujarat has passed Resolution dated 20.04.2001 keeping in view the provision contained in Section 43 of the Disability Act. By way of the said Resolution, Government of Gujarat has framed the scheme for the allotment of the Page 2 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT Government land to the persons with disabilities at concessional rate without holding an auction for the purpose mentioned therein including for construction of the residential houses.

5.2 It is the case of the petitioners that the petitioners are resident of Jamnagar and suffer from disabilities. The petitioners submitted applications for the allotment of the plot admeasuring 100 sq.mtrs. situated on land bearing Revenue Survey No.618 of Village : Chela, District : Jamnagar as per the policy framed by the Government of Gujarat by way of the aforesaid Resolution. Along with the said applications, required documents like disability certificates are also annexed. Such applications were made during the period between 2001 to 2009. Total 182 persons have submitted applications including the petitioners herein, who are 62 in number. Similarly situated other 23 persons have also submitted applications for the allotment of the land out of the land bearing Survey No.1158 situated in the said village. Page 3 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT 5.3 It is also stated that the Trust known as "Ashadeep Viklang Kalyankari Trust" situated in Jamnagar has been working for the rights of the persons with disabilities and, therefore, the said Trust extended assistance in pursuing the applications submitted by the petitioners with the concerned department. 5.4 It is further stated that layout plan of land bearing Survey No.618 was submitted to the respondent authority. The said layout plan was approved by the Jamnagar Area Development Authority. Necessary recommendation was made for the allotment of the land in question to the petitioners by the concerned respondent authority and, thereafter, process of fixing of sale price of the land in question was initiated. The District Valuation Committee held meeting on 07.02.2009 and it was decided in the said meeting that the market value of the land in question as on 07.02.2009 is Rs.560/­ per sq.mtrs. and, therefore, the Collector addressed a letter to the Mamlatdar calling upon him to seek consent of the applicants including the petitioners with Page 4 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT respect to the payment of the market price. The President of Ashadeep Viklang Kalyankari Trust gave assurance regarding payment of the market price on the basis of the District Valuation Committee at Rs.560/­ per sq.mtrs., however thereafter, correspondences took place between the said Trust and the concerned respondent authority. The concerned respondent authority sought information from the Collector and inquired that who would pay the purchase price for remaining plots considering that the layout plan has 205 plots and total applicants are 182 in number and whether necessary road length was maintained or not and, therefore, it was asked to submit fresh layout plan. Ultimately in the year 2015, decision was taken to close the issue, however, letter was addressed to the Hon'ble Chief Minister by the applicants including the petitioners for the allotment of the land, therefore, the Collector informed the Deputy Collector and concerned Trust had also requested to reconsider the decision and, thereafter, the present Page 5 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT petition is filed in the year 2016 and since then, it is pending.

6. Learned advocate, Ms. Jani appearing for the petitioners at the outset referred to the relevant provision contained in the Disability Act as well as object of the Disability Act and, thereafter, referred to the Government Resolution dated 20.04.2001, copy of which is produced on record at Page No.22 of the compilation. It is submitted that as per the said Resolution, the applications were submitted by the petitioners and other applicants for the allotment of the land as per the Government policy. It is submitted that there is no provision in the said Resolution to submit layout plan. It is contended that there is no provision in the said Resolution that the concerned applicants have to jointly submit applications for the allotment of the Government land and in fact, any individual can submit application as per the Resolution and, therefore, there is no requirement of submission of layout plan. Learned advocate has also contended that other 23 applicants have given applications for the allotment of the land bearing Survey No.1158 Page 6 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT and, therefore, the applications given by the said applicants can be considered for the allotment of the land from land bearing Survey No.618. It is submitted that the petitioners are also ready and willing to pay price fixed by the District Valuation Committee in the year 2009 and necessary consent was also given by them and inspite of that, the respondent authorities have not taken into consideration the request of the petitioners. At this stage, it is contended that the object of framing of policy as per the provision of the Disability Act is frustrated because of the stand taken by the respondent authorities. It is, therefore, urged that this petition be allowed and appropriate direction be issued to the respondent authorities.

7. On the other hand, learned AGP Ms. Jhaveri has referred to the affidavit­in­reply filed by the concerned respondent authorities and submitted that the layout plan submitted by the petitioners was for 205 plots, whereas the applicants were 182 in number and, therefore, the petitioners were asked to submit fresh layout plan for 205 plots containing necessary requirement like construction Page 7 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT of road, sewage, necessary amenities etc., however, when the petitioners and others have failed to provide such layout plan, the request of the petitioners is not accepted and, therefore, it cannot be said that the respondent authorities have committed any error by not allotting the plots to the present petitioners and others as per the aforesaid Government Resolution.

8. At this stage, learned AGP has referred to Government Resolution dated 06.06.2003, copy of which is produced on record at Page No.394 of the compilation. After referring to the said Resolution, it is contended that the said Resolution is issued by the Government for the allotment of the Government waste land for non­ agriculture purpose. Learned AGP has more particularly referred to Clause ­ 8 of the said Resolution and contended that the petitioners are required to construct the road and keep margin when the plots are allotted to them and, therefore, layout plan is required to be submitted. She, therefore, submitted that when the petitioners have failed to produce the fresh layout plan, the request of the petitioners has Page 8 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT not been considered. It is, therefore, urged that when the respondent authorities have acted as per the aforesaid Resolution of the year 2003, no fault can be found with the respondent authorities. It is, therefore, urged that this petition be dismissed.

9. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the Government of Gujarat has framed the policy for the allotment of the Government land at concessional rate without holding an auction to the persons with disabilities. The said Resolution is issued on 20.04.2001.

10. Before the provision contained in the said Resolution is considered, this Court would like to consider the object and reasons for enactment of the Disability Act, which reads as under, "(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;

(ii) to create barrier free environment for person with disabilities;

Page 9 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT

(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis­a­vis, non­ disabled persons;

(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;

(v) to lay down strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and

(vi) to make special provision of the integration of persons with disabilities into the social mainstream."

11. Chapter - VII of the Disability Act deals with affirmative action. Sections 42 and 43 of the Disability Act, which form part of Chapter - VII, make the provision with respect to making of schemes to provide aids and appliances to persons with disabilities and for preferential allotment of land for certain purposes. Section 43 of the Disability Act provides as under, "43. Schemes for preferential allotment of land for certain purposes. ­ The appropriate Governments and local authorities shall by notification frame schemes in favor of persons with disabilities, for the preferential allotment of land at concession] rates for­ Page 10 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT

(a) house; 

              (b)        setting up business;
              (c)        setting        up     of       special         recreation
                         centers;
              (d)        establishment of special schools;
              (e)        establishment of research centers;
              (f)        Establishment              of         factories                by

entrepreneurs with disabilities."

12. If the Government Resolution dated 20.04.2001 issued by the respondent - State is carefully seen, in the preamble, it is specifically stated that Section 43 of the Disability Act provides for allotment of the land to the persons with disabilities at concessional rate and Commissioner for persons with disabilities has also given instructions to frame a scheme for the allotment of the land at concessional rate. The respondent - State has therefore framed policy and issued the aforesaid Resolution, in which, it is decided to allot the Government waste land for various purposes to the persons with disabilities without holding an auction at concessional rate. Certain criteria are also laid down in the said Resolution. It is not in dispute that as per the aforesaid Resolution, the present petitioners and others have submitted applications to the Page 11 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT concerned respondent authority along with required documents. Their applications were processed and, thereafter, the District Valuation Committee has also decided the market price of the land in question i.e. Rs.560/­ per sq.mtrs. as on 07.02.2009. The consent was also given to pay the said market price by the petitioners and others through concerned Trust. At the relevant time, layout plan sanctioned by the Jamnagar Area Development Authority was also submitted to the respondent authority as the same was asked for by the State authority. However only objection taken by the respondent authority is that layout plan is for 205 plots, whereas the applicants are only 182 in number and, therefore, who will bear the cost of other plots. It is also revealed that the concerned respondent authority has also asked the petitioners to provide margin, construction of road, sewage etc. and thereby the petitioners and other applicants were asked to submit fresh layout plan.

Thus the controversy in the present petition is in very narrow compass. The question which is to be decided by this Court is as to whether the Page 12 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT petitioners and other applicants are required to submit layout plan or not. If the Government Resolution dated 20.04.2001, by which the policy is framed by the respondent - State for allotment of the land to the persons with disabilities without holding an auction at concessional rate, is carefully examined, it is revealed that any individual can submit an application for the allotment of the Government waste land. There is no requirement of giving an application by group of persons. There is no mention about the layout plan to be submitted to the respondent authorities in the said Resolution. During the course of hearing, learned AGP has placed reliance upon the Government Resolution dated 06.06.2003, copy of which is produced on record at Page No.394 of the compilation. In the said Resolution also, Clause - 5 provides for the allotment of the land without holding an auction at concessional rate to the persons with disabilities for certain purposes and in Clause - 5 of Government Resolution dated 06.06.2003, entire Government Resolution dated 20.04.2001 is reproduced. Clauses - 6 & 7 provide for allotment of the land to a particular class of Page 13 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT person. Learned AGP has only placed reliance upon Clause - 8 of the said Government Resolution dated 06.06.2003. It is stated in the said clause that 100 sq.mtrs. of land is to be allotted to each of the members of the Cooperative Housing Society and the provision of common plot, road, margin etc. is required to be made at the time of plotting. After relying upon the aforesaid clause, it was contended by learned AGP that in the present case also, the petitioners are required to follow the said provision contained in Clause - 8 of Government Resolution dated 06.06.2003.

13. In view of the above facts, this Court is of the view that the reliance placed by learned AGP upon the Government Resolution dated 06.06.2003 is totally misconceived as the Clause - 8 of the Government Resolution dated 06.06.2003 would be applicable to the Cooperative Housing Society when the Society requests for allotment of the plot for residential purposes. At the time of plotting and giving plot to the members of the said Society, they have to make the provision for common plot, road, margin etc. In the present case, no Cooperative Housing Society is framed by the Page 14 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT present petitioners and other applicants. Further there is no such requirement of forming of Cooperative Housing Society under the scheme of Government Resolution dated 20.04.2001 issued by the respondent - State. Thus when there is no such requirement of forming of Cooperative Housing Society and for making provision for common plot, road, margin etc., insistence by the respondent - State to submit layout plan is misconceived. Thus this Court is of the view that insistence on the part of the respondent authority to submit layout plan relying upon Clause - 8 of Government Resolution dated 06.06.2003 is not as per the policy framed by the respondent - State as per Government Resolution dated 20.04.2001.

14. If the facts, as discussed hereinabove, are carefully examined, it is further revealed that the applications were submitted by the petitioners and other similarly situated persons during the period between 2001 to 2009 as per the scheme framed by the Government under Section 43 of the Disability Act and the petitioners and other similarly situated persons have given their consent to pay market price fixed by the District Page 15 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT Valuation committee and, therefore, there was no reason for the respondent authority to ask for the details, which are not contemplated under the Government Resolution dated 20.04.2001. It is unfortunate that the petitioners are waiting since 2009 for the allotment of the plots as per the scheme framed by the Government without any fault on their part. Thus, this Court is of the view that the objects of the Disability Act as well as policy framed by the respondent - State by way of Government Resolution dated 20.04.2001 are frustrated because of the stand taken by the respondent authority. Therefore, in view of the aforesaid discussion, the present petition deserves consideration.

15. Therefore considering the facts of the present case, the respondents are hereby directed to consider the applications submitted by the petitioners and other similarly situated applicants as per the policy framed by the Government of Gujarat by way Government Resolution dated 20.04.2001 without insisting for the layout plan for the allotment of the land bearing Survey No.618 situated in Village : Chela, District : Page 16 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019 C/SCA/12775/2016 CAV JUDGMENT

Jamnagar if they fulfill the criteria as laid down in Government Resolution dated 20.04.2001 keeping in view the object of the Disability Act as well as provision contained in Section 43 of the Disability Act. The respondent authorities shall consider the case of the petitioners for the allotment of the plots to them by considering their individual applications and such exercise shall be completed within a period of three months from the date of receipt of this order.

16. With the aforesaid observation and direction, the present petition stands allowed accordingly. Rule is made absolute to the aforesaid extent. Direct service is permitted.

Sd/­ (VIPUL M. PANCHOLI, J.) Gautam Page 17 of 17 Downloaded on : Sat Sep 21 22:46:00 IST 2019