Gujarat High Court
Kiran H Doshi vs State Of Gujarat on 25 November, 2022
C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4032 of 2014
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KIRAN H. DOSHI & ORS.
Versus STATE OF GUJARAT & ANR.
========================================================== Appearance:
MR BJ TRIVEDI, ADVOCATE for the Petitioners No. 1 & 3 MR BHARAT T. RAO, ADVOCATE for the Petitioner No. 2 MS JYOTI BHATT, AGP for the Respondent No. 1 - State MR DEEP D. VYAS, ADVOCATE for the Respondent No. 2 - Corporation ========================================================== CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT Date : 25/11/2022 CAV ORDER
1. The present petition is filed by the petitioners under Article 226 of the Constitution of India by challenging the impugned action of the respondent Authority by carving out Final Plot No.19 and Final Plot No.21 in Town Planning Scheme No.3 of Odhav -
Ahmedabad, whereby the right of the present petitioners is said to be jeopardised.
2. Heard Mr.B.J. Trivedi, learned advocate for the petitioners, Mr.Deep D. Vyas, learned advocate for the Corporation and Ms.Jyoti Bhatt, learned advocate for the State Authorities.
Page 1 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 3.1 Mr.Trivedi, learned advocate for the petitioners has submitted that the petitioners are claiming either the original plot, which was their or the alternate plot, which was allotted to them, as per the said Town Planning Scheme.
3.2 He has submitted that the petitioners are inherited the land in question from one Meenaben, widow of Sankalchand Lallubhai by way of a registered Will No.10507 dated 16.12.1991. Said Meenaben expired on 21.03.1993. The beneficiaries of the said registered Will i.e. the petitioners got a probate in their names. 3.3 He has submitted that the draft T.P.Scheme No.3 (Odhav) was declared on 17.12.1976. 3.4 He has submitted that for giving them the very same plot would require alteration and modification of the said Town Planning Scheme, the very same plot was sought, as there was existing structures i.e. the said alternate plot was already occupied and the respondent had to give the vacant plot in alternate. Page 2 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 3.5 He has submitted that the respondent authority was supposed to hand over the allotted plot to the petitioners. He has submitted that the petitioners are in possession of the land in question since many years, which is undisputed fact. However, after being served with the notice by the authorities, the petitioners approached this Hon'ble Court and the said notices were stayed and therefore, for giving effect to the orders, whereby the petitioner was ordered to be put in possession of the allotted plot, has not been put in actual possession of the said allotted plot, as there is encroachment upon the said land.
3.6 The encroachers have also filed petitioners before this Court, who have no legal title of the land in question. Therefore, all the said matters were tagged. However, except the petitioners, no other petitioners of any other tagged petitions have been able to show any legal title in any of their respective petitions and merely on the basis of the interim relief in their favour, the present petitioners are made to suffer and therefore, all the matters were got tagged, so that the rightful title Page 3 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 holder can get the possession of the plot, which is required to be handed to them.
3.7 He has submitted that the revenue entry No.8624, dated 17-10-2017, which is placed with the Written Submissions, together with entries Nos.5625, dated 01-10-2007, No.5908 dated 03-10-2008, No.6003, dated 12-11-2008, No.6353, dated 08-04-2010, No.7071, dated 03-05-212 and No.8506 dated 02-05-2017 filed by the petitioners of SCAs No. 14469 to 14476 of 2016 are crystal clear and later on, vide the final Entry No.8624 dated 17-10-2017, it has been noted as to who are the beneficiaries of the said Will / probate certificate which was granted by the competent Civil Court. 3.8 He has also submitted that when this Hon'ble Court passed the orders, dated 05.08.2016, 24.08.2016 and 07.09.2016, the respondent No.2 never raised any such issues and readily agreed to get the land vacated and it is only now, at the time of final hearing, that such frivolous plea is raised, without any reason or rhyme. Thus, he has submitted that the present petition deserves to be allowed with compensatory costs and the Page 4 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 petitioners be handed over the possession, as per the said T.P.Scheme allotment, wherein, it was decided to allot Final Plot No.19 to the petitioners against their land of Survey No. 93/4, which is being given Final Plot No. 21.
3.9 He has further submitted that on 21.07.2003, the Estate Department prepared a note for proforma notice to be served under Section 68 read with Rule 33 which is never issued. He has further submitted that the Deputy Estate Officer has sanctioned the proposal made by the Assistant Estate Officer for serving notice under Section 68 read with Rule 33, but no steps have been taken.
3.10 He has submitted that on receiving the information under the Right to Information Act, it appears from the said record that the Town Planning Officer has misused the powers. He has submitted that when the Government has sanctioned the Scheme, he has not examined the issue. He has submitted that the widow aged about 83 years old and died in the year 1993 has never been served with the notice because she Page 5 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 was a resident of village Singarva and thereafter, the land in question has been bequeathed by her to the petitioners. He has submitted that the petitioners were residing outside Gujarat and the town Planning Officer has, by taking undue advantage of these facts, joined hands with the land grabbers. He has submitted that this petition may be allowed.
4.1 Per contra, Mr.Deep D. Vyas, learned advocate for the Corporation has drawn the attention of this Court towards some relevant dates as under. 4.1.1 The draft Town Planning Scheme was sanctioned on 29.07.1981 and the Preliminary Town Planning Scheme was sanctioned on 03.10.1994. In the said T.P.Scheme, Survey No.93/4 was given O.P. No.14/2 and F.P. No.19, whereas Survey Nos.93/1+5, 98, 99 and 102 were given O.P. No.18 and F.P. Nos.18, 21 and 24. 4.1.2 One Meenaben executed a Will in favour of the petitioners qua land bearing Survey No.93/4 on Page 6 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 16.05.1991. Said Meenaben expired on 21.03.1993. Said Will was registered with the Authority vide No.10507 on 11.05.1993.
4.1.3 One Regular Civil Suit No.2088 of 2007 was filed between the petitioners and others, where Panchnama was drawn on 04.10.207.
4.1.4 Since the petitioners were not the agriculturists, their application was rejected by Entry No.5625 on 29.11.2007.
4.1.5 While issuing notice by this Court on this petition on 18.03.2014, this Court has directed the Corporation not to dispossess the petitioners from Survey No.93/4 (Final Plot No.21).
4.1.6 The petitioner preferred an application being C.M.A. No.634 of 2015 for getting probate, which was allowed by the concerned trial Court vide order dated 06.01.2017.
4.2 He has relied upon the decision of Hon'ble Page 7 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 Apex Court in the case of Vinodchandra Sakarlal Kapadia Versus State of Gujarat reported in (2020) 18 SCC 144 and has submitted that the land cannot be bequeathed by way of Will to non-agriculture person and therefore, the case based on probate of Will which is obtained by the present petitioners for the agriculture land in question and petitioners are admittedly non- agriculturists and therefore, the petitioners cannot be granted any relief based on some action taken by the Town Planning Officer while preparing the finalisation of Town Planing Scheme and also relying on probate of the Will.
4.3 He has also relied upon the decision of Gauhati High Court (Shillong Bench) in the case of Ka Riverretta Diengdoh versus Ka Trially Sara Ryma and Another reported in AIR 2013 Gauhati 24 and has submitted that a question of title arising under the act cannot be gone and the construction of Will relating to right, title and interest is beyond the domain of the probate Court. He has submitted that the petitioners are the beneficiaries and not the executors and therefore, on the very ground itself, enforcement is not tenable. He Page 8 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 has submitted that as per Section 222 of the Succession Act, 1925, a probate can be granted only to an executor appointed by the Will.
4.4 He has further submitted that the disputed questions of fact are involved in the matter. He has submitted that in view of the petitioners not being the agriculturists in law, are not entitled for enforcing the right on the basis of the Will. He has submitted that this petition may be dismissed.
5. Ms.Jyoti Bhatt, learned AGP has accepted the submissions made by the Corporation and has submitted that the petitioners cannot be granted any relief. She has submitted that this petition may be dismissed. 6.1 In counter reply, learned advocate Mr.Trivedi for the petitioners has submitted that the competent Civil Court has granted probate certificate in favour of the petitioners in Civil Miscellaneous Application No.634 of 2015 vide order dated 06.01.2017, which has not been challenged by anyone till date and has attained the finality and thus, whether an agriculturist gave her Page 9 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 agricultural land in favour of the said legatee does not arise, as by the time, the said probate was given, the T.P.Scheme was finalised and the said agricultural land was allotted Final Plot number and as the law stands, and Final Plot in any Town Planning Scheme ceases to remain agricultural land and even otherwise, none of the beneficiary of the Will claim to become agriculturists by the said Will nor have any one of them attempted to purchase any other agricultural land on the basis of the said Will and therefore, the contention, raised by the learned advocate for the respondent No.2 is not only misconceived and misleading, it is mischievous, to say the least and was nothing but an attempt to mislead the Hon'ble Court by diverting the issue.
6.2 He has submitted that it is the duty of the Town Planning Officer to verify physically under the Act and get the address, but by relying upon the Talati of the village, he has committed mistakes. He has submitted that the petitioners gave letters dated 18.10.2013 and 28.11.2013 to the Corporation to vary the scheme and the petitioners should be given Final Plot at Survey No.93/4 Final Plot No.21 because Final Plot Page 10 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 No.19 which is given to the petitioners by the Town Planning Officer in the Final Town Planning Scheme, is fully encroached upon and there is no reason under which provisions, the Town Planning Officer has changed the location of the Final Plot because the petitioners are entitled to Final Plot in their own survey number because of the area of the plot is such and the very Town Planning Officer has granted benefit of final plot in the same survey number to the owners in Survey No.93/2+3 by giving Final Plot No.20 in their own land and made discrimination with the petitioners. 6.3 He has relied upon the Resolution dated 02.09.2016 issued by the Revenue Department, Government of Gujarat regarding the grant of T.P.N.A. and N.O.C. qua Final Town Planning Area in urban areas under Section 65 of the Land Revenue Code. He has submitted that this petition may be allowed by directing the respondents. He has submitted that this petition may be allowed.
7. I have heard learned advocates for the respective parties. After considering the submissions made Page 11 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 by the learned advocates for the respective parties, the picture which has emerged before this Court is as under
:
7.1 It is an undisputed fact that on 17.12.1976, the Government declared intention of framing T.P.Scheme No.3 (Odhav) and it was sanctioned on 29.07.1981. 7.2 The preliminary T.P.Scheme is also sanctioned on 03.10.1994.
7.3 It is also relevant to note that on 16.05.1991, by way of Will executed by one Meenaben, the petitioners have acquired interest in the land in question, i.e. land bearing Survey No.93/4. Said Meenaben expired on 21.03.1993.
7.4 The petitioners' survey No.93/4 was given Original Plot No.14/2 and in turn, it has been given Final Plot No.19. Whereas Survey Nos.93/1+5, 98, 99 and 102 have been given Original Plot No.18 and in turn, they have been given Final Plot No.18, 21 and 24. The Final Plot No.21 which has been given to Survey No.93/1 Page 12 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 is fully constructed by someone who is not having legally title over the said land.
7.5 On 11.05.1993, said Will was registered being No.10507 before the competent Authority. 7.6 It also transpires from the record that on 29.11.2007, the revenue authority has rejected the entry No.5625 of the petitioners which is mutated on the basis of the Will, as the petitioners are not an agriculturists. 7.7 Since the encroachers have tried to encroach the land of the petitioners in question, the petitioners have approached the competent Civil Court by filing Regular Civil Suit No.2088 of 2007, wherein the trial Court has granted injunction in favour of the petitioners on 03.10.2007, restraining the defendants of that suit from entering into the said land and interfering with the possession of the petitioners.
7.8 It is an undisputed fact that the petitioners are in possession of the land in question since many years by covering the land by fencing.
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C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 7.9 It also transpires from record that on 17.10.2013, the petitioner has sent communication to the Town Planning authority which indicates that he is not an agriculturist and therefore, his name could not be registered in the record of right.
7.10 In above circumstances, the petitioners also have legal notice to the respondents calling upon the Corporation to vary the scheme and give Final Plot No.21 because it has been carved out in Survey No.93/4, Original Plot No.14/2 which is owned by the petitioners. However, there is no response from the respondents. 7.11 Therefore, the petitioners have preferred an application to grant probate, which was granted on 06.01.2017 by the competent Civil Court. 8.1 The aspect that though it is a settled law that non-agriculturist like the present petitioners cannot claim or derive any right, title or interest on the land in question, more particularly, considering the decision of Hon'ble Apex Court in the case of Vinodchandra Sakarlal Page 14 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 Kapadia (supra), which is not as such material for the purpose of considering the claim made by the present petitioners under the T.P.Act about his Original Plot and in lieu of Original Plot, the Final Plot is allotted by the Town Planning Officer and he is claiming possession of that Final Plot.
8.2 This Court has taken note of the fact that the preliminary T.P.Scheme is sanctioned way back in the year 1994 and the petitioners have approached this Court in the year 2014, though the fact remains that the petitioners are in occupation of the said land since many years, but their names are never reflected in the revenue record, till the process of T.P.Scheme No.3 (Odhav) is finalised. Therefore, apparently it seems that the present petition is filed, after many years of delay, after the preliminary T.P.Scheme is sanctioned. However, this Court has also taken note of the Resolution issued by the Government of Gujarat dated 02.09.2016, whereby the Government of Gujarat has abolished the non-agriculture approval process in Urban Town Planning (T.P.) areas.
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C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 8.3 Considering all these aspects in background and also considering the various provisions of the Town Planning Act and fact that the authority should have been allotted the Final Plot No.21 against the Survey No.93/4 to the petitioners, which is in possession of the petitioners and against that survey No.93/4, the petitioners are allotted Final Plot No.19, where as per the submissions made by the petitioners, unauthorised constructions are made by the petitioners of Special Civil Application No.14454 of 2016 to 144476 of 2016 and therefore, the Corporation is not in a position to handover the vacant and peaceful possession of F.P.No.19 to the petitioners.
8.4 Moreover, it transpires that the Corporation has accepted the fees for regularisation of the unauthorised consideration put up on F.P. No.19 by way of impact fees, order of regularisation which subsequently is cancelled by the competent Authority. In view of these, this petition needs to be allowed partly by issuing appropriate direction to the respondents, since the petitioner(s), who are allotted Final Plot No.19, which is fully constructed whereby unauthorised occupants are Page 16 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 there and therefore, the authority could not handover the possession of Final Plot No.19 to the petitioner(s) and therefore, prayer made by the petitioners for Final Plot No.21 which is carved out qua Survey No.93/4 instead of allotting Final Plot No.19, which is carved out from Survey No.93/1+5, 98, 99 and 102.
9. Considering the totality of the circumstances as well as keeping in mind the Resolution passed by the Government of Gujarat dated 02.09.2016, the following order is passed.
9.1 This petition is partly allowed.
9.2 The petitioners are directed to approach the Corporation under the Town Planning Act, for variation or for appropriate implementation of the Scheme No.3 (Odhav), qua Final Plot no.19 and 21 only, within six weeks from today in prescribed format.
9.3 Further, respondent No.2 - the Ahmedabad Municipal Corporation is directed that on receipt of such application from the present petitioner(s) for variation / Page 17 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022 C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 implementation, the same shall be forwarded to the State Government in proper format by preparing appropriate proposal for variation of Plot Nos.19 and 21 in Town Planning Scheme No.3 (Odhav), Ahmedabad, within four weeks thereafter.
9.4 The State Government is also hereby directed that the same shall be considered in accordance with law and considering the record available with them as expeditiously as possible, but preferably within a period of six wees after receipt of the proposal for variation. 9.5 It is ordered that the respondents are restrained from evicting the possession of the petitioner(s) from Final Plot No.21 till the final decision is taken qua the application and the proposal for variation of the petitioner(s) by the respondents authorities, regarding Final Plot No.19 of T.P.Scheme No.3 (Odhav), Ahmedabad, which is allotted to the petitioner(s) and may consider it about Final Plot No.21 for the petitioners or may handover the vacant possession of Plot No.19 of T.P.Scheme to the petitioners. Page 18 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022
C/SCA/4032/2014 CAV ORDER DATED: 25/11/2022 9.6 While deciding the proposal/application, the respondent authorities shall keep in mind the fact that the authorities have to vary the Town Planning Scheme No.3 (Odhav - Ahmedabad) by permitting the petitioner(s) to retain his possession of Final Plot No.21 or by evicting the unauthorised occupants of Final Plot No.19 by handing over the possession to the petitioners.
10. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(SANDEEP N. BHATT,J) M.H. DAVE Page 19 of 19 Downloaded on : Sat Dec 24 00:13:01 IST 2022