Gujarat High Court
Nandesari Education Trust vs Gujarat Industrial Development ... on 6 September, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/7968/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7968 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? No
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 No
India or any order made thereunder ?
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NANDESARI EDUCATION TRUST....Petitioner(s)
Versus
GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION....Respondent(s)
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Appearance:
MR MANAV A MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR CHINMAY M GANDHI, ADVOCATE for the Respondent(s) No. 1
MR MB GANDHI, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 06/09/2017
ORAL JUDGMENT
Heard learned advocate Mr.Manav Mehta for the petitioner and learned advocate Mr.Chinmay Gandhi for the respondent-Gujarat Industrial Development Corporation.
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C/SCA/7968/2010 JUDGMENT
2. What the petitioner prayed in this petition is as under.
"(i) ... ... set aside the direction / order dated 06.03.2010 passed by the respondent directing the petitioner trust to construct compound wall after leaving open 4.30 mtrs. wide RCC road parallel to 2.75 mtrs.
internal passage and the order revising the area of plot No.1-E from 3046.56 sq.mtrs. to 2798.45 sq.mtrs.;
(ii) ... ... commanding the respondent Corporation to give necessary instruction to the Taluka Development officer to begin with the work of construction of the compound wall on school premises with adequate police protection;"
3. The petitioner named as Nandesari Education Trust claims to be running a school - Nandesari Vidhyalay in the industrial estate of the Corporation. In the year 1997 Trust was allotted Plot No.1-D admeasuring about 3000 sq. mtrs. of the Corporation for the purpose of constructing the building. The school was in need of some open space for playground, therefore upon an application made by the petitioner Trust in the year 1998, a further space in the nature of Plot No.1-E was alloted. The area thereof, as claimed by the petitioner, was 3,046.56 sq. mtrs. The allotment letter for the said Plot No.1-E was issued on 22nd April, 1998. The said land was allotted free of cost as per the case of the petitioner. As per the case of the petitioner, compound wall is required to be constructed covering the said open plot for which Member of Parliament has allowed a grant to be spent.
3.1 The filing of present petition and making of the prayers as aforesaid was preceded by Special Civil Application No.11946 of 2009 in which similar prayer on same set of facts was made. The said petition Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Sep 10 06:25:42 IST 2017 C/SCA/7968/2010 JUDGMENT culminated into order dated 20th November, 2009 passed by this Court in which the following directions were issued relegating the petitioner to make a representation to the Corporation extracting as under.
"3. In that view of the matter, in the interest of justice the following order is passed:
(I) The petitioner shall approach the respondent Corporation with an application for expeditious decision.
(II) The respondent Corporation shall decide the application of the petitioner within a period of four weeks from the date of receipt of the application.
(III) It is made clear that this court has not entered in the merits of the matter and the order is passed only with a view to see that the grievance of the petitioner is addressed by the respondent Corporation at the earliest."
3.2 Pursuant to the aforesaid order, the Regional Manager of GIDC, Vadodara, passed order dated 06th March, 2010 which is the subject matter of grievance and the challenge in the present petition.
4. Learned advocate for the petitioner vehemently submitted that the petitioner Trust is being deprived of the use of school playground. He submitted that there is no tar road as alleged and that though the road is described as tar road, no such road is laid and yet a strip is used as road across the Plot No.1-E. It was further submitted that on the plot No.1-F, shopping center has been constructed and the shop holders in the complex have extended their use and have been encroaching upon the land.
4.1 Learned advocate for the Corporation relied on the affidavit-in-reply to invite attention of the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun Sep 10 06:25:42 IST 2017 C/SCA/7968/2010 JUDGMENT Court to paragraphs 4 and 5 of affidavit-in-reply, in which it is contended as under.
"4. ... ... ... originally the school was allotted 3000 sq.mtrs. of land in the name of Nandesari Education Trust, way back on 7th June, 1982 and this allotment was made on a token rent of Re.1/- and one license agreement on 09.07.1982 was executed, physical possession of the said plot had been handed over to the petitioner on 12.07.1982. That thereafter, the petitioner trust had requested for the allotment of the adjacent plot No.1/E for the purpose of playground for the school and the children studying therein. That GIDC in its 378 Board Meeting resolved to allot the plot No.1/E admeasuring 3046.56 sq.mtrs. to the present petitioner for the purpose of playground free of cost. Accordingly, allotment in respect of the said plot was made and order was passed on 27.04.1998 and a deed was executed on 01.06.1998 and physical possession of the plot accordingly was given on 20.10.1999. That the adjoining plot No.1/F was earmarked for the shopping centre in the development plan of the Nandesari Industrial Estate and that shopping centre for which plot was allotted on 13.02.2002 and at that time internal passage was arranged to the tune of 2.75 M wide and that road was provided along with the side of plot No.1/F.
5. ... ... ... after the allotment of the plot to the petitioner, it was the party of the duty of the petitioner to see that the compound wall is constructed but no compound wall was constructed surrounding the plot No.1/E and the construction of the compound wall which was started some six years back of the plot in question from the funds of the Hon'ble Member of Parliament. While doing the construction work of the compound wall in the Western side of the plot No.1/E there was an existence of 4.30 M wide road constructed by the Member of Legislative Assembly from M.L.A. Funds shall hamper the construction since the road has already been made for the public use. That the petitioner herein has represented to remove the said 4.30M wide public road and the Chairman and the Managing Director of the GIDC had visited personally to the site and thereafter as per the directions given in the previous petition, a decision was taken whereby it has been decided that 4.30 M wide of RCC road which has been constructed on plot No.1/E long back through the M.P. Funds and the road is in public use since several years and therefore, the petitioner having not taken any objection and the public road having come into existence, with the use of public money and if the road is stopped, the number of problems of public importance would arise. Not only that, but, in the aforesaid background, it was decided that open land admeasuring 248.11 sq.mtrs. (4.30 X 57.70 M) would be reduced from the original one and it Page 4 of 8 HC-NIC Page 4 of 8 Created On Sun Sep 10 06:25:42 IST 2017 C/SCA/7968/2010 JUDGMENT was decided that this reduction of the small area of the plot would not adversely affect the purpose of the playground because, the remaining area of the land admeasuring 2798.45 sq.mtrs. would remain with the petitioner trust for the purpose of playground and therefore, the area admeasuring 248.11 sq.m has been reduced from the plot area of plot No.1/E and same has been earmarked for the public road and accordingly, it has been decided to revise the development plan and it has been decided that the area allotted to the petitioner has been reduced and the net area, which would remain with the petitioner trust would be 2798.45 sq.mtrs. Instead of 3046.56 sq.mtrs."
4.2 The above stand was in addition to the contention that petition is not maintainable as the earlier petition with the similar prayers was dismissed.
5. This Court considered the facts and the submissions. It is worthwhile to reproduce the operative paragraphs of the order which reflect the grounds and reasons for not exceeding to the request of the petitioner.
"1. The 4.30mtrs. width RCC Road has been constructed in plot No.1/E, long back throug DRDA funds and the grant of Hon'ble MLA and the road has been in public use. During the construction of the road which was done 5/6 years ago the petitioner had not raised any objection, hence the road came into existence with use of public money. In case the road is blocked/removed by allowing construction of compound wall around plot NO.1/D & 1/E, the same shall result into waste of public money. Over and above by removal of the existing road, alternately road would need to be constructed for approach purpose, in which again government/public funds will be to be spent. In view of it, it is decided that this 4.30 mtrs. wide RCC Road passing through plot No.1/E at Nandesari be kept open for public use.
2. Keeping open the area covered under 4.30 mtrs.wide RCC road admeasuring 248.11 sq.mtrs. (4.30 X 57.70 mtrs) would not adversly affect the purpose of Play Ground, as remaining area admeasuring 2798.45 shall remain with Nandesari Education Trust for the Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun Sep 10 06:25:42 IST 2017 C/SCA/7968/2010 JUDGMENT purpose of play ground. Hence the area admeasuring 248.11 sq.mtrs. from plot No.1/E covered under 4.30mtrs. wide RCC road is to be earmarked as "road" and accordingly the DD Plan to be revised.
3. Nandesari Education Trust may construct the compound wall after leaving open the 4.30 mtrs. wide RCC road parallel to 2.75 mtrs. internal passage. Therefore, the area of plot No.1/E will not be revised as 2798.45 sq.mtrs. instead of 3046.56 sq. mtrs."
5.1 The position which obtains is that a road is made to pass across the Plot No.1-E which is 4.30 mtrs. Wide road admeasuring 248.11 sq. mtrs. The remaining area of the Plot No.1-E would be 2,798.45 sq. mtrs. This entire area of 2,798.45 sq. mtrs. is to remain with the petitioner Trust to be used as playground. The aforesaid road is part of the development plan and barring the portion of the road, GIDC has no objection if the petitioner is to erect the compound wall to cover the area of playground.
5.2 The grievance about the road cutting across Plot No.1-E raised by the petitioner is not merited in asmuch as a substantial and almost entire portion of plot area would be with the petitioner-Trust to be used as playground for the school. The petitioner could not persuade the Court with any ground so as to book any error in the order dated 06th March, 2010 passed by the authority of the Corporation pursuant to petitioner's representation.
5.3 It further emerges that on the other side of the plot No.1-E thre exist a building with commercial shops. The users of the said shopping center on plot No.1-F, according to the petitioner, have encroached Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Sep 10 06:25:42 IST 2017 C/SCA/7968/2010 JUDGMENT part of the land, due to which the petitioner-Trust has been suffering for use of its playground. Another aspect is that some of the shop owners in the shopping center on plot No.1-F have instituted Regular Civil Suit No.953 of 2008 against the petitioner as well as the respondent Corporation for prohibiting the petitioner from constructing wall on the road passing between plot No.1-E and 1-F. It is the contention that the said road passes through plot No.1-E consuming the area of Plot No.1-E. Filing of the suit and the rival contentions on this score, takes the controversy in the clear realm of disputed questions of fact. Neither such is the scope of controversy in this petition, nor the prayer is related to this aspect.
6. In substance, it has to be recorded by reiterating that even if the portion of the plot No.1- E is used in road which is a part of development plan, large and substantial area to the tune of 2,798.45 sq. mtrs. is still with the petitioner to be used as open space and playground for the purpose of school which the petitioner has been running. This disputed aspect could not be gone into in the writ jurisdiction. If the petitioner has grievance about encroachment, recourse to independent remedy by the petitioner, if permissible in law, is not barred and shall not be treated to be barred even after this order. No opinion is expressed on that count.
7. No case whatsoever is made out for granting any relief to the petitioner. The petition is accordingly dismissed. Rule is discharges. Interim relief stands vacated.
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