Gujarat High Court
Lalitaben Brijmohan Bhavsar & vs Assistant Estate Officer on 23 December, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/3807/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3807 of 2013
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LALITABEN BRIJMOHAN BHAVSAR & 1....Petitioner(s)
Versus
ASSISTANT ESTATE OFFICER,ESTATE AND TOWN DEVELOPMENT
DEPARTM & 1....Respondent(s)
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Appearance:
MR PJ MEHTA, ADVOCATE for the Petitioner(s) No. 1 - 2
MS ASMITA PATEL, AGP for the Respondent(s) No. 2
MR DEEP D VYAS, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 23/12/2014
ORAL ORDER
1. Heard Mr. P. J. Mehta, learned advocate for the petitioners, Mr. Deep Vyas, learned advocate for respondent no.1 and Ms. Asmita Patel, learned AGP for respondent no.2.
2. The petitioners, by way of this petition under Article 226 of the Constitution of India, have prayed for following reliefs:
"(A) Be pleased to issue writ of mandamus or other appropriate Writ/Order/Direction against respondent No.1&2 for quashing and setting aside the order dated 11-03-2013 Annexure-"G" in the interest of justice.Page 1 of 12 C/SCA/3807/2013 ORDER
(B) Be pleased to issue interim direction to maintain status quo as on today in the interest of justice.
(C) Be pleased to direct the respondent to acquire the land of both the sides equally for the purpose of 18 meters Samrat Nagar, Isanpur approach road in the interest of justice.
(D) Be pleased to direct the respondents to allot alternative space/shop as well as adequate compensation to the petitioner if the respondents demolish the petitioner's shop No.30 of survey No.627 O.P. No.131 F. P. No.110/2 of T. P. Scheme No.55 Isanpur South in the interest of justice."
3. The facts emerging out of the record of the petition are as under:
4. The petitioners claim to be owner of shop no.30 situated in Isanpur area of Ahmedabad which according to the petitioners is part of revenue survey no.627/2 being original plot no.131, final plot no.110/3 known as Om Satya Farsan House. The land in question is situated near the area of Pushpmala Society, Isanpur-Vata Road T. P. Scheme No.55 (Isanpur South), Ahmedabad City. It is contended by the petitioners that 18 meter road passes through the property belonging to Rajmandir Tenaments, Omkar Fates, common plots and gardens and Lakshmikunj Society from which according to the petitioners, due to political pressure as well as high handed money power of builders, about more than 20 Page 2 of 12 C/SCA/3807/2013 ORDER feet lands were occupied in the 18 meter approach road. The entire T. P. Scheme was varied against the public interest by damaging the poor shop keepers instead of open plots of builders. It is the case of the petitioners that the petitioners filed objections on 24/01/2005 and also demanded other documents vide communication dated 22/11/2005. It also appears from the record that the scheme came to be sanctioned vide notification dated01/05/2012 under Section 65 of the Gujarat Town Planning And Urban Development Act, 1976 (for short 'the Act'). It further appears that the respondent corporation as an implementing authority issued a notice under Section 68 of the Act read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (Herein after referred to as "the Rules"). Ultimately by an order dated 11/03/2013, the respondent corporation as an implementing authority passed an order of eviction against the petitioners.
5. Mr. P. J. Mehta, learned advocate for the petitioners has relied upon the averments made in the petition and has taken this Court through the factual aspects arising out of this petition. Mr. Mehta, learned advocate submitted that the order dated 11/03/2013 is capricious, arbitrary, unjust, Page 3 of 12 C/SCA/3807/2013 ORDER improper and in violation of Article 14 of the Constitution of India. Mr.Mehta, learned advocate further submitted that 18 meter approach road is taken only from one side and therefore it is arbitrary and colourbale exercise of power which requires to be quashed in the interest of justice. It was contended that the respondents are duty bound to prepare the Town Planning Scheme in such a manner so as the damage is minimum to the properties. It was contended that even though more than 20 feet land is taken from the one side, the authority has not considered the same because of high handed political power. It was contended that the scheme is bad and therefore, it requires to be varied under Section-70-A of the Act. It was also contended that the petitioner should be paid compensation under Section 73 of the Act as well as under
Section 82 of the Act as the petitioners have incurred expenses of about 30 lakhs. It is submitted that the action of the respondent is violative of Article 21 of the Constitution of India and the petitioners cannot be evicted without giving an alternative place. It is also contended that there are serious lapses and lacuna and there is non compliance of Section 52 of the Act and therefore, this petition deserves to be allowed.
6. Mr. Deep Vyas, learned advocate for the respondent Page 4 of 12 C/SCA/3807/2013 ORDER corporation submitted that the land which is occupied by the petitioners is a government land and the petitioners are not the owners of the land in question. Mr. Vyas, learned advocate submitted that the scheme is sanctioned under Section 65 of the Act vide notification dated 01/05/2012 and the same has become part of the Act. Mr. Vyas, learned advocate further submitted that the respondent corporation as an implementing authority has followed the procedure while implementing the scheme and therefore, the allegations leveled against the respondents are not true and are totally uncalled for. Mr. Vyas, learned advocate further submitted that there is no policy of the government or the respondent corporation to provide alternative accommodation to a person who is occupier of a commercial premises. It was submitted that the petition is totally misconceived and the same deserves to be dismissed.
7. Ms. Asmita Patel, learned AGP has adopted the arguments of Mr.Vyas, learned advocate for respondent corporation and has submitted that the petition deserves to be dismissed.
8. The petitioner no.2 has also filed additional affidavit and Page 5 of 12 C/SCA/3807/2013 ORDER has submitted that in compliance to the order dated 22/01/2014, the petitioner had filed representation to the respondent corporation which has been rejected vide order dated 05/03/2014. It was contended that the same is against the ratio laid down by the Hon'ble Apex Court in the case between Olga Tellis v. Bombay Municipal Corporation reported in AIR 1986 SC 180. It was also contended that other similarly situated persons are not being evicted for it as per inquiry report of Justice Mr. K. M. Mehta, Commissioner, Inquiry Report. The offices of the Revenue Department and the State Government Culprit Officers and the corporation as well as the State Government has not taken any action against any such officer as per the recommendation of Mr. Justice K. M. Mehta, the Commissioner, Inquiry Report.
9. No other and/or further submissions are made by learned counsel appearing for the parties.
10. Upon considering the submissions made by learned advocates appearing for the parties and on perusal of the contentions raised by the petitioners in the petition as well as in the affidavit in reply filed by the respondent corporation as well as additional affidavit and the rejoinder filed by the Page 6 of 12 C/SCA/3807/2013 ORDER petitioner, it is noteworthy that the petitioners claim to be owner of the land in question on the basis of unregistered Kabjakarar dated 22/01/1992 which is part of the record of this petition as Annexure-H-1 and H-2. In addition to this, the petitioners have relied upon the house tax bills. As per the record of the petition, the Town Planning Scheme No.55 (South), Isanpur (Preliminary Scheme) is sanctioned by the State Government vide notification dated 01/05/2012. As per the sanctioned preliminary scheme, the original revenue survey no.627 part, original plot no.131 admeasureing 6475 sq. mtr., by way of reconstitution, 4 final plots are alloted being final plot no.101/1 admeasuring 1098 sq. mtr., final plot no.110/2 admeasuring 1805 sq. mtr, final plot no.110/3 admeasuring 1576 sq. mtr. and final plot no.110/4 admeasuring 668 sq. mtr. The F Form as well as village form no.7/12 clearly indicates that the land belongs to the State Government and as per the TP Record, it is shown as Government 'fallow' land in the name of District Collector, Ahmedabad. In light of such contemporaneous record, the petitioners are not the owners of the land in question i.e. original plot itself. The Kabjakarar relied upon by the petitioners does not give any title in favour of the petitioners. The petitioners have not been able to establish and show that Page 7 of 12 C/SCA/3807/2013 ORDER while preparing the Town Planning Scheme which is sanctioned under Section 65 of the Act, there is any discrepancy in the procedure. The allegations made in the petition are totally baseless. The record of the petition, on the contrary, indicates that even at the stage of preparation of the scheme, in response to the public notice issued by the Town Planning Officer, the petitioners filed objection dated 18/01/2005 which is at Annexue-A to this petition. Even in that objection, the petitioners have mentioned about Banakhat. In light of the aforesaid facts, therefore, the petitioners are not the owners of the land in question and therefore, they cannot claim, as a matter of right, any final plot in the scheme. It appears from the record that the corporation as an implementing authority has rightly issued notice under Section 68 of the Act read with Rule 33 of the Rules and after considering the averments made by the petitioners in response to the notice has passed order dated 11/03/2003 which is legal and proper and in accordance with law and sanctioned scheme which has become part of the Act as envisaged under Section 65(3) of the Act. Even before this Court, the petitioners have not been able to establish that they have title over the land in question. General allegations are made against the respondents in the name of builders and Page 8 of 12 C/SCA/3807/2013 ORDER political persons which are without any material or basis. The scheme is already sanctioned and therefore, the grounds on which the same is challenged does not warrant any variation in the scheme. The contention raised by the petitioners that the notice and the action of respondent corporation in implementing the scheme is violative of Article 21 of the Constitution of India inasmuch as that the petitioners are entitled to alternative accommodation deserves to be negatived. Under the provisions of Town Planning Scheme, a Town Planning Scheme has been implemented by implementing authority as it is sanctioned. Section 67 of the Act provides for effect of the scheme. The said provision inter alia provides that if the land is reserved for any public purpose, it would vest in the appropriate authority free from all encumbrances on the date on which the scheme comes into force. The very said provision further provides that rights of the parties are crystallized on sanction of the scheme. As observed earlier, the District Collector, Ahmedabad is the owner of the land in question and rights have been crystallized by reconstitution of the original plot in four different final plots. The contention raised by the petitioners that the road should be carved out with equal effect on both the sides is a matter of town planning. More so, the objection Page 9 of 12 C/SCA/3807/2013 ORDER raised by the petitioners before the Town Planning Officer has been considered while preparing the preliminary scheme. It may be noted that in the objection which was filed by the petitioners before Town Planning Officer, the contention as regards width of the road having been changed on some basis of political pressure from high handed persons or the builders is not raised and the same is nothing but an afterthought and it is raised for the first time after the scheme is sanctioned which is sought to be implemented. The contention raised by the petitioners that the petitioners are entitled to compensation under Section 73 and 82 is also misconceived. Section 73 of the Act provides that; if at any time after the date on which the scheme has come into force, such scheme is varied, any person who has incurred any expenditure for the purpose of complying with such scheme shall be entitled to be compensated by the appropriate authority for the expenditure, if such expenditure is rendered abortive by reason of the variation of the scheme. Firstly the petitioners are not the owner and secondly the scheme is not varied and therefore, Section 73 has no application whatsoever to the facts of the present case. Similarly Section 82 of the Act provides for compensation to the owner of any property and therefore Section 82 of th Act also has no applicability in the Page 10 of 12 C/SCA/3807/2013 ORDER present case. The respondent corporation is duty bound to implement the scheme as it is in accordance with law as decided by the Apex Court in the case of Municipal Corporation for Greater, Bombay and anotehr v. Advance Builders (India) Pvt. Ltd. and others reported in AIR 1972 SC 793 wherein it is held that it is the duty of corporation to implement the scheme and that the corporation is under the obligation to perform his duty in accordance with the provisions of the Act. As observed above, there is no scheme for alternative accommodation to the persons who are encroachers of commercial premises. The respondent corporation while considering the representation filed by the petitioners, pursuant to the order of this Court, has considered the same in light of the policy of the corporation. In light of the facts that the petitioners have no right title over the land and have no right to occupy the land, without any legal title, which belongs to the State Government and cannot claim any alternative accommodation. The land in question is allocated for laying down 18 meter road as per sanctioned scheme, which in a city like Ahmedabad is need of hour. From the record of the petition, this Court has found that the implementing authority respondent corporation has made all endeavor to follow the procedure for implementation and has Page 11 of 12 C/SCA/3807/2013 ORDER followed the same.
11. In light of the aforesaid, none of the contentions raised by the petitioner deserves interference of this Court and all contentions deserves to be negatived. The petition deserves to be dismissed in limine and is hereby rejected. Notice is discharged. Ad interim relief, granted earlier, stands vacated. In the facts and circumstances of the case, however, no order as to costs.
12. Mr. P. J. Mehta, learned advocate for the petitioners requested for extension of the ad-interim relief granted in order to enable the petitioners to approach the higher forum.
13. Though it is objected to by learned advocates appearing for the respondents, in the facts and circumstances of the case, the ad-interim relief, granted earlier is extended till 16/01/2015.
(R.M.CHHAYA, J.) ila Page 12 of 12