Gujarat High Court
Dharmendrasinh B Vaghela & 22 vs State Of Gujarat & on 18 July, 2013
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/15028/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.15028 of 2011
With
SPECIAL CIVIL APPLICATION NO.17053 of 2011
With
SPECIAL CIVIL APPLICATION NO.17514 of 2011
With
SPECIAL CIVIL APPLICATION NO.15197 of 2011
With
SPECIAL CIVIL APPLICATION NO.12914 of 2012
With
SPECIAL CIVIL APPLICATION NO.11682 of 2012
With
SPECIAL CIVIL APPLICATION NO.12221 of 2012
With
SPECIAL CIVIL APPLICATION NO.15199 of 2011
With
SPECIAL CIVIL APPLICATION NO.15206 of 2011
With
SPECIAL CIVIL APPLICATION NO.15202 of 2011
With
SPECIAL CIVIL APPLICATION NO.15218 of 2011
With
SPECIAL CIVIL APPLICATION NO.15203 of 2011
With
SPECIAL CIVIL APPLICATION NO.15198 of 2011
With
SPECIAL CIVIL APPLICATION NO.15210 of 2011
With
SPECIAL CIVIL APPLICATION NO.15208 of 2011
With
SPECIAL CIVIL APPLICATION NO.15209 of 2011
With
SPECIAL CIVIL APPLICATION NO.15211 of 2011
With
SPECIAL CIVIL APPLICATION NO.15207 of 2011
With
SPECIAL CIVIL APPLICATION NO.18158 of 2011
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DHARMENDRASINH B VAGHELA & 22....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR CHINMAY M GANDHI, ADVOCATE for the Petitioner(s) No.1 - 23
MR MB GANDHI, ADVOCATE for the Petitioner(s) No.1 - 23
MR PS CHAUDHARY, ADVOCATE for the Petitioner in Special Civil
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C/SCA/15028/2011 ORDER
Application No.18158/2011
MR HEMANG RAVAL, ADVOCATE for MR AD OZA, ADVOCATE for the
Petitioner in Special Civil Applications No.12221/2012 and
11682/2012
MS NISHA THAKORE, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No.1
NOTICE SERVED BY DS for the Respondent(s) No.2
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CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 18/07/2013
COMMON ORAL ORDER
1. Since the controversy involved in all these petitions is common, the same were taken up for hearing together and are disposed of by this common judgment.
2. Heard Mr. Chinmay Gandhi, Mr. P.S. Chaudhary and Mr. Hemang Raval, learned advocates for the petitioners and Ms. Nisha Thakore, learned Assistant Government Pleader for the respondent State authorities.
3. The lead petition is Special Civil Application No.15028/2011, under the circumstances, for the sake of convenience reference is made to the facts as stated in the said petition.
4. The petitioners herein are Government servants. Some are also judicial officers, two of whom have already retired upon attaining the age of superannuation. It is the case of the petitioners that the office of the Collector, Ahmedabad issued a circular intimating the period during which applications for allotment of land would be processed and the Page 2 of 13 HC-NIC Page 2 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER period during which the plots would be allotted. The said circular also indicated the area of plot to which an applicant would be entitled depending upon his basic pay. By an order dated 1st November, 2003, the Government declared that certain lands as enumerated therein were available for allotment to Government employees at concessional rates for residential purposes. Lands bearing survey No.102 and 105 of mauje Chenpur, Taluka Dascroi, District Ahmedabad, were also available for distribution to the Government servants.
5. In the present case, the petitioners have either made applications for allotment of land from Survey No.102 of mauje Chenpur or Survey No.105 of mauje Chenpur. Pursuant to applications made in this regard, a common list of applicants by whom applications were made for land bearing Survey No.102 and 105 was prepared by the Government. Most of the present petitioners had made applications in the year 2008 whereas some of them had made applications in the year 2009. It appears that in case of employees of the Revenue Department who had made applications in the year 2009 in respect of Block No.259 of village Khodiyar, district Ahmedabad, allotment of land had been made vide order dated 28th June, 2010, whereas in the case of the petitioners, the applications had not been processed. The petitioners have, therefore, filed the present petition seeking the following substantive reliefs:-
17. The petitioners, therefore, pray that
a) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or Page 3 of 13 HC-NIC Page 3 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER direction in the nature of mandamus directing the respondents No.1 & 2 to entertain the application made as per Annexure-B for the land bearing Block Nos.102 & 105 situated at village Chenpur (which is a big land) of which at least 4000 sq.mtrs. of land be allotted to the petitioners.
b) In the alternative, this Hon'ble Court be pleased to direct the respondents herein to see that if any land shown in Annexure-B is not allotted, then the same may be allotted to the petitioners as all the petitioners are fulfilling the required terms and conditions of the circular.
c) In the alternative, this Hon'ble Court be pleased to direct the respondents to allot land to the petitioners anywhere surrounding the aforesaid villages of Chenur, Khodiar, Lilapur etc., at the concessional rates in parity with earlier allotments made at Khodiar.
6. Pursuant to the filing of the petition, the matter came up for hearing from time to time. On 3 rd September, 2012, this court passed an order in the following terms:-
1. Ms. Nisha Thakore, ld. AGP has tendered in additional affidavit, filed by the respondent No.2, Resident Additional Collector, Ahmedabad. Ms. Thakore has also further tendered a communication dated 03.09.2012, addressed by Deputy Secretary to the State of Gujarat in Revenue Department to Ms. Thakore. Considering the additional affidavit filed today, it is observed that as pointed out by learned counsel appearing for the parties, Special Civil Application No.5944 of 2010 is already disposed of. This Court has also noticed that even during the pendency of this petition and other allied matters, no stay against consideration of the applications, which are pending has come to the knowledge of this Court and neither the said fact has been pointed out on affidavit by the respondents.Page 4 of 13
HC-NIC Page 4 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER The affidavit, which is filed today, the Resident Addl. Collector, in para 7, the following statement is made:
"7. I further say and submit that so far as time limit for taking decision for allotment of residential plots to the petitioners is concerned, it was submitted on oath on affidavit dated 14.02.2012 and I reiterate the same. I, therefore pray to the Hon'ble Court to grant approximately three months time from the date of intimation of the writ of this Hon'ble Court in respect of the claims of the petitioners with regard to the allotment of plots as per G.R. Dated 6.6.2003. Under the aforesaid facts and circumstances, I, therefore say and submit that there is no merits in the case of the petitioners as same being premature since no adverse orders have been passed on the applications of the petitioners and the same are under considerations. I therefore humbly urges to this Hon'ble Court the petition may kindly be dismissed at its threshold."
2. In view of the aforesaid statement, by an interim direction, the respondents are hereby directed to process the applications filed by the petitioner, which is pending since 2008 within a period of 3 months as per the statement made in the affidavit and submit the report before this Court within 3 months from today and submit report before this Court on 05.11.2012 .
3. The petitioners shall directly serve this order upon respondents. The petition shall be placed for its further hearing before the Court on 05.11.2012.
4. As recorded above, as there is no stay granted by this Court, the directions as given above, shall be carried out in accordance with law on the basis of the present policy of the Government and pendency of this petition shall not be considered to be hindrance to consider such applications, unless and until any order is passed, restraining consideration of the same.
7. It appears that during the pendency of the petitions, various steps were taken by the State Government as has been set out in the affidavit-in-reply filed on behalf of the respondents from time to time. The case of the respondents Page 5 of 13 HC-NIC Page 5 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER as stated in the affidavits-in-reply is that the State Government vide G.R. dated 6th June, 2003 framed a policy for allotment of Government waste land for non-agricultural use to various categories of persons including Government employees. Under Clause (Kh), the District Collectors were empowered to dispose off such Government lands. So far as allotment of lands for residential purpose in case of Government employees is concerned, the limits which were prescribed were increased up to 200 square metres/Rs.1 lakh. The G.R. also provided that the powers were not absolute insofar as lands included within the limits of six major cities namely, Ahmedabad, Vadodara, Surat, Rajkot, Jamnagar and Bhavnagar are concerned and the Collector was required to send darkhast to the State Government for necessary approval. The G.R. also states that so far as price of the land is concerned, the same shall be governed by the policy that may be framed from time to time. Allotment of land to Government employees is included in clause (7) of the said G.R. The eligibility criteria for allotment in case of Government employees is that as on the date of the application, the employee should have completed five years of service and at the same time, he should not be holding any land/house/flat in his name or in the name of his/her husband, wife or dependent within eight kilometres from the place where he/she is seeking allotment. So far as choice of land is concerned, the land can be allotted either at the district where the employee's home was situated or at the place where the employee works. Again, the area of the plot would depend upon the salary of the employee as on the date of the application. The G.R. further provides that the assessment/valuation of the land to be allotted shall be 50% of the value so determined by the District Valuation Committee in Page 6 of 13 HC-NIC Page 6 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER view of the G.R. dated 15th January, 1998. It has further provided a schedule whereby the price of land allotted varies as per the salary of the employee and such allotment is subject to restrictions and conditions as prescribed. Clause (5) thereof specifically provides that in case of allotment for residential purpose, if the number of applications is found to be more than the land available, the draw system is to be followed.
8. In view of the above policy of the State Government, the second respondent - District Collector on 1st November, 2003 had initially identified and declared various Government waste lands including Revenue Survey No.102 and 105 of mauje Chenpur, Taluka Dascroi, District Ahmedabad, as reserved for allotment to Government employees for residential purpose. Since the Government was actively considering review of its earlier policies dated 4 th April, 2001 and 28th July, 2004 in respect of allotment of land in case of Government employees for residential purpose, vide G.R. dated 28th July, 2006 the Government issued general directions whereby it was resolved to form a Committee consisting of (i) District Collector, (ii) Municipal/Deputy Commissioner, (iii) CEO of Area Development Authority and (iv) District Development Officer, who would identify the lands of the Municipal Corporation and Municipality which were not located at prime locations having N.A. potentiality and such lands were to be listed making the same available for allotment on the website. It was also resolved not to allot lands having N.A. potential included within the Municipal limits and only those lands which were identified by the Committee were to be made available for allotment. It is the case of the respondents that on the date when the applications came to be made by the petitioners, Page 7 of 13 HC-NIC Page 7 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER more particularly in the year 2008, the said lands at Chenpur were not identified and were not available for allotment. It appears that in view of the policy of the State Government dated 6th June, 2003, various applications which were submitted by the applicants were received by the Collector's office in the routine course, which, however, were subject to scrutiny. During the years 2008 to 2010, 58 applications were received in respect of Survey No.102 and 30 applications were received in respect of Survey No.105. While making scrutiny of some of the applications, the office of the Collector found that the applications could not be entertained as the lands in respect of which allotment was sought were no longer available for allotment. The same was accordingly brought to the notice of the Government. On 10 th August, 2009, the Collector sent a Darkhast (proposal) in case of 28 applicants of Survey No.102 and 105 to the State Government.
9. Meanwhile in the month of April, 2009, some other applicants of Survey No.105 of mauje Chenpur who had made applications during the period 2003 to 2006 filed a writ petition before this court being Special Civil Application No.5944/2010 raising grievance as regards the inaction in allotment of lands to them. Pursuant thereto, vide an order dated 29 th December, 2010, the High Court had directed the respondents to decide the applications of the year 2003 within fifteen days, in case of Revenue Survey No.105. In the said proceedings, in view of the orders passed by the High Court from time to time, lands were allotted to the petitioners therein on 28th July, 2011. It appears that on account of some procedural aspect as well as some intervening events, the applications of the petitioners were not processed any further. On 29th November, 2012, the Collector Page 8 of 13 HC-NIC Page 8 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER sought permission from the State Government for undertaking draw in respect of Survey No. 102 and 105 of mauje Chenpur as the number of applications were more than the land available for allotment. Vide communication dated November, 2012, the applicants were informed about the draw. There were 58 applicants for Survey No.102 and 30 applicants for Survey No.105, all of whom were informed about the draw. At this stage, the petitioners herein filed a civil application being Civil Application No.13010/2012 seeking stay of the draw proceedings. However, the said application came to be rejected by an order dated 22 nd November, 2012. Thereafter, on 24th November, 2012, the draw proceedings were undertaken wherein all the eligible applicants including the petitioners had participated.
10. Pursuant to the draw held on 24th November, 2012, a report dated 4th December, 2012 came to be submitted to the State Government with a schedule of the persons who were covered by the draw. A copy of the report has been placed on record at page 181 of the record of this case. Since some of the applicants were left out because the land available was less, a representation was made before the State Government showing readiness for allotment of a lesser area of land so that all applicants could be included in the above referred lands at Chenpur. The Government, therefore, vide communication dated 25th February, 2013 called for options from the applicants who were agreeable for allotment of a lesser area than requested by them. Pursuant thereto, some of the applicants have shown willingness for being allotted a lesser area of land.
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11. The learned Assistant Government Pleader has also placed on record the statement of the applicants who were successful in the draw held on 24th November, 2012 which reveals that in respect of Survey No.102, the number of eligible applicants were 58 whereas the land available for allotment was 6419 square metres. From the statement submitted by the respondents and the facts as stated in the petition, briefly, the following details can be culled out as regards the petitioners who were successful in the draw:
Survey No.102 of Chenpur Serial Name of the Special Civil Area as per Area as per No. in petitioner Application the the affidavit the application (in sqr. mtr.) draw (in sqr. mtr.) 25 Mr. J.K. Rathod SCA/17514/2011 250 250 38 Mr. M.J. SCA/12914/2012 250 250 Parashar 31 Mr. M.T. SCA/11682/2012 250 200 Acharya 18 Mr. N.K. Parikh SCA/12221/2012 250 200 2 Mr. K.M. Dave SCA/15199/2011 250 135 4 Mr. S.G. SCA/15206/2011 250 250 Brahmbhatt 6 Mr. T.V. Joshi SCA/15202/2011 250 250 10 Mr. D.B. SCA/15028/2011 90 90 Vaghela 14 Mr. J.H. SCA/15218/2011 250 135 Champavat 16 Mr. B.B. Purohit SCA/15203/2011 90 90 17 Mr. M.M. SCA/15198/2011 250 135 Gandhi Survey No.105 of Chenpur Page 10 of 13 HC-NIC Page 10 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER Serial Name of the Special Civil Area as per Area as per No. in petitioner Application the the affidavit the application (in sqr. mtr.) draw (in sqr. mtr.) 12 Mr. M.V. Patel SCA/17053/2011 250 200 15 Mr. P.J. SCA/15197/2011 90 90 Champavat 2 Ms. R.D. Parmar SCA/15210/2011 90 90 5 Mr. M.K. Rajpara SCA/15208/2011 90 90 7 Mr. K.S. Patel SCA/15209/2011 250 250 16 Mr. M.J. Rathod SCA/15211/2011 90 90 20 Ms. N.B. Munshi SCA/15207/2011 250 250 21 Mr. V.K. Vyas SCA/18158/2011 250 250
12. The record reveals that insofar as land bearing survey No.102 of mouje Chenpur is concerned, in terms of the draw, considering the original claims in the applications, the list of drawees could be operated till Serial No.35 and accordingly, 35 persons became entitled to allotment of residential plots. However, some of the applicants had shown willingness for allotment of lesser area of land. Therefore, land to the extent of 830 square metres out of the Survey No.102, became available for allotment to other applicants. Accordingly, it is possible to operate the list of drawees further, whereby the applicants at Serial No.36, 37 and 38 would also be included in the list of successful applicants.
13. Similarly, in the case of Survey No.105, the total area of land which is available for allotment is 3194 square metres. The total number of eligible applicants is 30. Accordingly, as per the original applications made by the applicants, 19 applicants were successful in the draw conducted by the respondents. However, in view of the fact Page 11 of 13 HC-NIC Page 11 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER that some of the applicants had shown willingness for allotment of lesser area of land, 464 square metres of land became available for allotment to other applicants. Under the circumstances, it is now possible to operate the list further and the next two drawees would be in a position to be allotted plots. However, the next two applicants have requested for 250 square metres of land each whereas the land available is 454 square metres. Hence, there is a deficit of 46 square metres so far as the applicant at Serial No.21 namely, Vimal Kanhaiyalal Vyas is concerned. However, in this regard, Mr. P.S. Chaudhary, learned counsel for the said petitioner has stated before this court that the said petitioner namely, Vimal Kanhaiyalal Vyas is ready and willing to accept 204 square metres of land despite the fact that he had applied for allotment of 250 square metres. Therefore, the list in respect of Survey No.105 can be operated till Serial No.21.
14. In the aforesaid premises, the grievance voiced by all these petitioners stands substantially redressed at this stage, inasmuch as, they have succeeded in the draw and the proposal for allotment of lands to them has already been forwarded to the State Government. To allay the fear of the petitioners that the matter may be kept pending before the State Government and be further delayed, the court deems it fit to direct the State Government to take a decision on the proposal submitted by the Collector within a period of three months from today.
15. In the light of the aforesaid discussion, nothing further is required to be done in these petitions at this stage. The State Government shall take a decision on the proposal Page 12 of 13 HC-NIC Page 12 of 13 Created On Sat Feb 04 00:19:43 IST 2017 C/SCA/15028/2011 ORDER forwarded by the Collector, Ahmedabad as regards allotment of plots to the applicants who were successful in the draw, within a period of three months from today. The petitions are accordingly disposed of.
16. Since Special Civil Application No.15028 of 2011 is the lead petition and matters of some of the petitioners who have failed in the draw are still pending adjudication, the papers of the said petition shall be retained alongwith the one- page petitions which are yet to be decided.
Registry to keep a copy of this order in each petition.
( Harsha Devani, J. ) hki Page 13 of 13 HC-NIC Page 13 of 13 Created On Sat Feb 04 00:19:43 IST 2017