Gujarat High Court
Natubhai Manilal Patel vs State Of Gujarat on 30 January, 2025
NEUTRAL CITATION
C/SCA/14327/2023 ORDER DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14327 of 2023
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NATUBHAI MANILAL PATEL & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KARTIKKUMAR K JOSHI(8042) for the petitioners(s) No. 1,2,3,4,5,6,7
MR. SUMIT V CHAUDHARI(9388) for the petitioners(s) No. 1,2,3,4,5,6,7
MR AAKASH GUPTA AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3
MR BJ TRIVEDI(921) for the Respondent(s) No. 5
MR DEEP D VYAS(3869) for the Respondent(s) No. 2,4
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 30/01/2025
ORAL ORDER
1. This petition is filed seeking to quash and set aside the order dated 24.03.2023 of respondent no. 4 - Estate officer of Ahmedabad Municipal Corporation, whereby the application of the petitioners' proposing variation in Final Town Planning Scheme No.3 of Odhav Ahmedabad, has been rejected. It is also prayed that Ahmedabad Municipal Corporation may be directed to send proposal for variation of Town Planning Scheme-3 Odhav Ahmedabad to the State Government.
2. Facts in brief as referred in the petition are stated hereunder:
Page 1 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined 2.1. The petitioners herein are in occupation of part of the land bearing original plot No.18 in Town Planning Scheme No.3 of Odhav, Ahmedabad. (Hereinafter referred as "subject property").
2.2. This is second round of litigation. Earlier several petitions were filed by the petitioners' challenging notices issued by respondent- corporation under section 67 and 68 read with rule 33 of the Gujarat Town Planning and Urban Development Act (T.P. Act for short). It was grievance of the petitioners in that petition (earlier) that since they are in occupation of subject land for many years and they being the rightful owner, entitled for allotment of final plot in their favour.
2.3. Upon finalization of scheme, Special Civil Application No.4032 of 2014 was filed by the respondent No.5 herein, seeking implementation of scheme whereas other petitions i.e. Special Civil Application Nos. 14454 of 2016, 14469 of 2016 and allied matters were filed by the petitioners herein, seeking variation in the scheme. The captioned Special Civil Application No. 14454 of 2016 and other matters were decided by respective orders dated 25.11.2022, wherein this Court permitted the present petitioners to approach respondent authority by way of appropriate representation/application along with relevant documents and the Special Civil Page 2 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined Application No.4032 of 2014 of the respondent No.5 also came to be disposed of directing to approach the respondent authority by way of appropriate representation/applications along with relevant documents. The petitioners had challenged the aforesaid orders by filing Letters Patent Appeal No.487 of 2023 and allied matters, wherein the Letters Patent Appeal were not entertained by order dated 21.06.2023. The petitioners had also made application seeking variation and the same was rejected by order dated 24.03.2023, aggrieved by which, present petition is filed.
2.4. In the meantime, respondent-corporation initiated proceedings and after providing opportunity of hearing to the petitioners, cancelled the earlier order regularizing unauthorized construction, by an order dated 26.10.2017. The petitioners herein, had also challenged the order dated 26.10.2017, of cancellation of GRUDA proceedings by filing Special Civil Application No.20420 of 20218 and allied matters. That proceedings were assailed in Letters Patent Appeal No. 832 of 2023, wherein this Court had not entertained the Letters Patent Appeal by order dated 12.07.2023.
3. Heard learned advocate Mr.Nilesh Pandya with learned advocate Mr.Kartik Kumar Joshi for the petitioners, learned Asst. Government Pleader Mr.Aakash Gupta for respondent Page 3 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined No.1, learned advocate Mr. Deep Vyas for respondent Nos.2, 3 and 4 (Ahmedabad Municipal Corporation) and learned advocate Mr. Brijesh Trivedi for respondent No.5 (private respondent).
4. Learned advocate Mr. Pandya with learned advocate Mr. Joshi for the petitioners submitted that the order dated 24.03.2023 is erroneous on following grounds:
(i) That the petitioners are in possession of the subject property since many years, either by way of general power of attorney holder or notarized agreement to sale executed in their favour.
(ii) Pursuant to the directions of this Court under order dated
25.11.2022 in Special Civil Application No.14454 of 2016 with other allied matters, the petitioners herein were permitted to approach respondent - Corporation by way of appropriate representations/ applications along with relevant documents for consideration of final plot in their favour by way of variation in Final Town Planning Scheme No.3 (Odhav), Ahmedabad. Special Civil Application No.4032 of 2014, was also part of above order dated 25.11.2025. Accordingly, the petitioners preferred appropriate application/representation dated 05.01.2023. Despite that, the impugned order dated Page 4 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined 24.03.2024 was passed ignoring the documents relied upon by the petitioners.
(iii) Further, in the representation dated 05.11.2023, it was case of the petitioners that they are in possession of the subject land since many years by way agreement to sale in their favour. Learned Advocate in support relied upon agreements to sale placed on record. In few cases there exist the power of attorney in favour of the petitioners. All these documents were ignored and therefore the order dated 24.03.2023 is erroneous. Further, the Corporation is not competent to decide title of the property which has been done in this case and therefore, the order dated 24.03.2023 being illegal deserves to be quashed and set aside.
(iv) The petitioners have further contended that, on the subject property there exist a construction since many years. The petitioners therefore made application seeking regularization of un-authorized construction. The said application was originally allowed and subsequently cancelled by an order dated 26.10.2017, without any cogent reason and therefore order dated 26.10.2017 and all consequential actions deserves to be quashed and set aside.
(v) Further, from the order dated 24.03.2023, it is evident Page 5 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined that the application of the petitioners' seeking variation was rejected considering the title of the subject land. Since the respondent Municipal Corporation is not competent to decide title of the subject property, the order dated 24.03.2023 deserves to be quashed and set aside.
(vi) Learned advocate further submitted that in relation to un- authorized construction as alleged by Municipal Corporation, the petitioners had preferred application seeking regularization of un-authorized construction under GRUDA 2022 and along with the application, various documents were placed on record justifying title of the subject property. Further, against the rejection of the application seeking regularization under GRUDA Act, 2022, the appeal is provided under the provisions of the Act. Therefore, also order dated 24.03.2023 based non- application of mind deserves to be quashed and set aside.
4.1. Learned advocate, thus, submitted that the present petition deserves to be allowed by quashing and setting aside the order dated 24.03.2023.
5. Above submissions were strenuously opposed by learned advocate Mr.Deep Vyas, for the respondent - Corporation. Inviting attention of this Court to the order dated 8.11.2023, learned advocate submitted that this Court by detailed order, Page 6 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined recording all the facts, had rejected the request seeking interim relief.
(i) Further, following chronology may be considered to appreciate procedure followed before finalization of Town Planning Scheme No.3 Odhav Ahmedabad.
Sr.No. Date Particulars
1. 23.12.1976 Declaration of intention of TP scheme u/s.41 of TP Act.
2. 03.05.1976 Owners meeting was held on 03.05.1976
3. 27.09.1981 State Government sanction of the draft scheme u/s. 48(2) of TP Act.
4. 08.09.1981 State Government had appointed Town Planning Officer (TPO) u/s.50(1) of TP Act
5. 18.03.1993 The TPO has prepared the scheme by following procedure u/s.52 r/w. Rule 26 and upon following the prescribed procedure, published its decision u/s.52(1) and submitted the scheme to the State Government.
6. 02.09.1994 State Government sanctioned the Preliminary TP Scheme by notification dated 02.09.1994
7. 04.02.1999 State Government sanctioned the Final TP Scheme by notification dated 04.02.1999
(ii) Further under the sanctioned scheme with respect to land bearing Survey No.93/4, the same was represented as Original Plot No.14/2 and the owner was allotted Final Plot No.19.
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(iii) After allotment of final plot, respondent no.5 claiming to be owner of Final Plot No. 19, filed Special Civil Application No.4032 of 2014, wherein this court by order dated 25.11.2022, directed respondent-corporation to implement scheme by evicting unauthorized occupants of Final Plot No.19 or vary the T P Scheme qua Final Plot No.21, by providing opportunity to the petitioners.
(iv) The petitioners herein had also filed two set of proceedings:
(a) under Town Planning Act:
Special Civil Application No.14454 of 2016, Special Civil Application No.14469 of 2016 and allied matter were filed, challenging the notice dated 20.08.2016 under Section 68 r/w. Rule 33 and for allotment of the reconstituted plots, held by them. The said petitions, were disposed of by reasoned order dated 25.11.2022, holding that the petitioners being encroachers have no legal title for the land in question. It was also held that the documents relied upon were notarized agreement to sale and therefore their prayer for grant of reconstituted plot, cannot be considered. However, while disposing of the petition, a liberty was granted to make an application for variation. The variation application was directed to be decided in accordance with law and such decision was to Page 8 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined be communicated to the petitioners. These proceedings were assailed in Letters Patent Appeal No.487 of 2023 and this Court disposed of the appeal on 21.06.2023.
(b) Under GRUDA proceedings:
Special Civil Application No.20420 of 2018 and allied matters, were also filed challenging the order dated 26.10.2017. By order dated 26.10.2017, the earlier order granting regularization of unauthorized construction was cancelled. These proceedings were assailed in Letters Patent Appeal No.832 of 2023, and this court disposed of appeal on 12.07.2023, with following directions:
"5. In view of the above scenario obtaining, the present Letters Patent Appeal is disposed of with following directions and observations.
(i) The grievance of the petitioner raised in the instant petition, dealt with by learned Single Judge and now subject matter of this Letters Patent Appeal that the procedure under the GUDA has not been followed while rejecting the request for regularisation, is permitted to be agitated when the petitioner may file challenge to the order dated 24.3.2023. However this Court does not express any opinion in this regard.
(ii) The remedy of appeal under Section 12 of the GUDA Page 9 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined Act, which is available to the petitioner, may also be availed by the petitioner, if advised.
(iii) It will be also open for the petitioner to make representation as per the directions of learned Single Judge and avail the said right in accordance with law.
6. Observing that either of the above course may be adopted by the petitioner to ventilate his grievance, for otherwise, the Court does not find any merit in the challenge to the order of learned Single Judge."
(v) Accordingly, after carrying out necessary variation and scrutinizing the record of GURDA, notice dated 29.09.2016 was issued to the petitioners requesting them to produce original documents of GRUDA application along with all documents submitted therein with sanctioned maps. It was also indicated that if they fail to produce details called for appropriate action shall be taken.
(vi) The petitioners responded to the notices by communication dated 04.10.2016 without producing original documents. A notice was also issued to Engineer and concerned officers of the Corporation and in response they denied their signatures on GRUDA application and the documents submitted therein. Therefore, another notice dated 16.11.2016 was served asking the parties to remain present Page 10 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined with original documents along with concerned Engineer. The said notice was served through RPAD. Thereafter order dated 25.11.20216 was passed rejecting the respective GRUDA certificates serving these orders to concerned petitioners by registered AD post. The above order was subject matter of challenge by filing Special Civil Application No.19981 to 19985 of 2015 where the petitioners were directed to provide opportunity of hearing and the same was provided by fixing the hearing on 28.07.2017.
(vii) Thus, after hearing the petitioners, an order dated 26.10.2017, was passed by Corporation cancelling earlier permission GRUDA application on the ground of forged document and forged declaration in filing GRUDA application. It was also observed that in view of section 11(2) of GRUDA, the proceedings do not confer any entitlement on ownership of occupation. The order dated 26.10.2017 of GRUDA is challenged and placed on record of Special Civil Application No.16628 of 2004 at page 27/A. The aforesaid GRUDA order dated 26.10.2017 passed by Corporation, was challenged in GRUDA appeal, which was not entertained by an order 14.03.2024. Against order dated 14.03.2024, the petitioners filed Special Civil Application No.16628 of 2024 and allied matters.
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(viii) For grievance of the petitioners seeking variation in the town planning Scheme No.3 Odhav Ahmedabad, in view of direction to the Corporation to consider the variation, the Corporation after considering the submissions, rejected the variation application filed by the petitioners on following grounds (a) Town Planning Scheme was sanctioned and all procedures were properly followed as per the act. (b) On sanctioning of the scheme, the same becomes part of the act and as per Section 67(a) the land would vest free from all encumbrances and rights determined by the town planning officer with respect to final plot, becomes final and binding between the parties and in view of sanctioned the scheme, the petitioners were not having right, title or interest over the land in question. (c) The rights of the petitioners were not even accrued and born on the declaration of the intention of the town planning scheme. (d)Therefore, in absence of any right available to the petitioners, there is no error, irregularity or informality having found by the authority, in the TP scheme, the application of variation was dismissed.
(ix) Further, as can be seen from the directions in LPA, the petitioners were given an option to pursue either of the options and therefore, also there cannot be two simultaneous proceeding, once having pursed with the variation application and the same been rejected. Even otherwise also the authority Page 12 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined invoking inherent powers had cancelled the GURDA, which was based upon the petitioners forged document and declaration. Therefore, this petition deserves dismissal.
6. Learned advocate Mr. Vyas in support of his submissions relied upon the following decisions:
(i) Municipal Corporation for Greater Bombay vs. Advance Builders (India) Pvt. Ltd. reported in AIR 1972 SC 739 to submit that once the scheme is sanctioned, it is bounded duty of the appropriate authority to implement the scheme in the same manner as sanctioned.
(ii) Kashiben wd./o Pitambar Devchand and Another Vs State of Gujarat reported in 1989 (2) GLR 1176 to submit that once final scheme is prepared, it must be deemed to be a part of the act. The owner loses all rights over the land and liable to be evicted, in accordance with law.
(iii) Varahi Co-operative Housing Society Vs State of Gujarat reported in 2019 (2) GLR 1088 to submit that Petition filed almost 4 years after issuance of the Notification, suffers from the vice of delay and laches and is fatal. The final scheme was sanctioned by State Government in exercise of powers conferred u/s. 65 of the Act and now final scheme has become part of the Act. Therefore, the petitioner or its members had Page 13 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined ceased to have any right over the said plots.
7. Supporting the submissions made by learned advocate Mr.Deep Vyas, learned advocate Mr.B.J.Trivedi for respondent No.5 submitted that pursuant to finalization of Town Planning Scheme in the year 1999, respondent No.5 was given Final Plot No.19. Therefore, respondent no.5 preferred Special Civil Application No.4032 of 2014, seeking implementation of the Town Planning Scheme, whereas petitioners preferred SCA 14454 of 2016 and other allied petitions challenging the direction to hand over the peaceful and vacant possession. The said petitions were disposed of by permitting the petitioners to file application seeking variation and the same has been rejected by reasoned order dated 24.03.2023.
7.1. Further, the petitioners' application seeking regularization under GRUDA was rightly rejected by an order dated 26.10.2017 on the ground that the documents produced seeking GRUDA permission were forged. The Special Civil Application No.20420 of 2018 filed challenging order dated 26.10.2017 was also rejected.
7.2. Further, out of 8 petitioners herein, 5 had preferred suit before City Civil Court claiming adverse possession and declaration of permanent injunction and the same has been Page 14 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined rejected by the City Civil Court under order dated 30.12.2023.
7.3 The City Civil Court also ordered payment of cost of Rs.15,000/-. There is no challenge to the order dated 30.12.2023 and the cost ordered was also not paid. Thus, learned advocate Mr.Trivedi submitted that the entire petition being misconceived, the petition deserves to be dismissed.
8. Considered the submissions and the documents on record. Revisitation of facts indicate that this petition is filed seeking to quash and set aside the order dated 24.03.2023 passed by respondent - Corporation wherein after consideration of objections raised by the stake holders including the petitioners herein, the Corporation recorded that pursuant to finalizations of Town Planning Scheme No.43 (Odhav-3), the subject land vest with the Municipal Corporation. Pursuant to finalization of scheme and the subject land having being vested with the Municipal Corporation it is the original owners were allotted final plot Nos.18, 19, 21 and 24. From the order dated 24.03.2023, it is evident that the procedure contemplated under the provisions of the Act, before finalization of preliminary town planning scheme, has been followed which has been referred in the tabular form in the order dated 24.03.2023 as also in the submissions made on behalf of Learned Advocate for respondent corporation and recorded in Page 15 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined this judgment. Therefore, once the scheme has been finalized and notified, it has become the part of the Act and, therefore, the only remedy available to the petitioners is to seek variation and the same has been considered in the order dated 24.03.2023.
9. In relation to contention raised by the petitioners that they are in occupation of the subject land since many years, it is noticed that in the earlier round of litigation in Special Civil Application No.14454 of 2016, this Court has directed as under:
"6. I have heard the learned advocates for the respective parties. I have also considered the material on record. The picture which has emerged before this Court is as under.
6.1 It is an undisputed fact that the petitioners are not the legally title holders of the land which they possess. They are in possession of the land in question through the agreement to sell only since many years.
6.2 The regularisation of the unauthorised construction, which is claimed by the petitioners, under the GRUDA Act (Impact), has been cancelled by the Authorities, which is also an undisputed fact. In view of Section 11 of the Gujarat Regularisation of Unauthorised Development Act, any decision under this section not be deemed to have Page 16 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined decided the ownership of the unauthorised development. There is also a provision for appeal under Section 12 of the Act, which the petitioners did not avail and thus, the cancellation order has attained finality.
6.3 It is noted that the draft Town Planning Scheme No.3 (Odhav), Ahmedabad 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. As submitted by the petitioners, the Final Plot No.21 is carved out from Survey No.93/4. The ownership of Survey No.93/4 is of the persons other than the petitioners, which is also an undisputed fact.
6.4 The judgments cited by the learned advocate for the petitioners are not applicable to the facts of these cases as the petitioners are not having valid and proper documents of the title.
6.5 Since the petitioners have no legal title in the land in question, the petitioners may be treated as encroachers, though they are in possession over the land in question from many years. The documents on which they rely is a notarised agreement to sell and not the registered one also. Therefore, this Court finds that no prayer need to be Page 17 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined granted to the petitioners by exercising the jurisdiction under Article 226 of the Constitution of India."
10. Therefore, in view of the order dated 25.11.2022 passed in Special Civil Application No.14454 of 2016 the petitioners' contention that they are owners of subject land is not correct and does not require further consideration.
11. Further, the contention raised in present proceedings with regard to application preferred under the provisions of GRUDA is of no consequence because, it has been clearly held by this Court while rejecting the interim relief vide order dated 08.11.2023 in this petition, that earlier the GRUDA Application was preferred under forged documents, which is evident from the observation that the signature of the officer found in map was not found to be genuine signature and no such signature was made by the concerned officer at the relevant time. Further the reliance placed by the petitioners on the certificate or the application, under provisions of GRUDA would not make the title of the property in favour of the present petitioners. Most importantly, when the suit was preferred by the petitioners seeking adverse possession, the City Civil Court under order dated 30.12.2023 has held as under:
"8. Now, to conclude this discussion, the plaintiff has no Page 18 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined locus to file this suit on the basis of defective title. The plaintiff cannot claim plea of adverse possession mixing with plea of ownership/permissive possession by clever drafting. No cause of action arises for the plaintiff to file this suit against the present defendant Nos.1 to 6. Further, in prayer clause, no specific prayer has been asked against the defendant No.7 AMC. In addition, the cause of action for the defendant- AMC was arise from the Notice issued Under Section 68 read with Rule 33 of The Gujarat Town Planning and Urban Development Act. This notice was challenged by the plaintiff before Hon'ble High Court of Gujarat in SCA No.14474/2016 and it had been decided against the plaintiff. Therefore, the plaintiff has no cause of action to challenge the said notice. Therefore, the present suit deserves to be dismissed under O. 7 R. 11(a) as it is filed without any cause of action. The plaintiff is also liable to pay reasonable cost to the defendant No.1 to 6, for filing such a frivolous suit against them. In the light of above discussion, in the interest of the justice, I pass the following final order below this application: -
-ORDER-
A. The present chamber summons preferred at Exhibits 28 and 29, are hereby allowed and accordingly the plaint is hereby rejected in terms of Order VII Rule 11(a) of the Code of Civil Procedure.Page 19 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025
NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined B. The plaintiff is hereby ordered to pay Rs.15,000/- (Rupees Fifteen Thousand only) towards the special cost jointly, to the defendants Nos.1 to 6.
C. Order below Exh.1 accordingly."
12. Therefore, in view of findings recorded in the earlier round of litigation as also as recorded by the City Civil Court under dated 30.12.2023 that the petitioners have no legal title over the said property, the directions to quash and set aside the order dated 24.03.2023 passed by respondent - Corporation cannot be accepted. Further in this case, it cannot be ignored that upon finalization of the scheme, it has become part of the Act and the proposal for variation has also been rejected by an order dated 24.03.2023.
13. Now taking contention of the petitioners that the respondent - Corporation cannot decide the title of the property and the has been done in the order dated 24.03.2023, this Court is of the opinion that the Corporation in the order dated 24.03.2023 has taken note of the fact that pursuant to the sanctioning of the scheme under Section 65 of the Gujarat Town Planning Act, the land vest with the authority free from all encumbrances. Thereafter pursuant to the finalization of scheme under Section 67(1) read with Section 67(2) of the Act Page 20 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined once the scheme is finalized, all the rights determined by Town Planning Officer has become final and the land vest free from all encumbrances to the Corporation. Therefore, the petitioners could not have any right in the subject property and there is no error, irregularity or informality in finalization of TP scheme. In relation to the contention that therefore, the petitioners have preferred variation application, it is noticed that upon finalization of the town planning scheme, the original owners have been allotted the final plot against their original plot. This aspect has been again supported by the order passed in Special Civil Application No.4032 of 2014. Special Civil Application No.4032 of 2014 was filed by respondent No.5 herein who is allottee of final plot No.19. This Court in the said order has rejected the petitions filed by petitioners herein who had challenged the town planning scheme. Thus, once the title of the property is vested with respondent No.5 and the same has been considered by this Court, as stated herein above, the contention of the petitioners that the Municipal Corporation cannot decide the title which has been done in the order dated 24.03.2024, does not merit acceptance.
14. In the order dated 24.03.2023, the Corporation has stated that upon finalization of town planning scheme, the original owner has been allotted final plot against their original plot Page 21 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025 NEUTRAL CITATION C/SCA/14327/2023 ORDER DATED: 30/01/2025 undefined and all final plot holders have been directed to take peaceful and vacant possession. Therefore, upon allotment of final plot number in their favour they are entitled for the said plot and the present petitioners having no title in the subject land, their application seeking variation in the scheme cannot be considered. In view of these clear findings record in the order dated 24.03.2023 as supported by the order dated 25.11.2022 in Special Civil Application No.4032 of 2014, , I do not find any error in the order.
15. In view of above, the petitioners have failed to point out any error, irregularity or infirmity for making proposal for variation in the sanctioned Town Planning Scheme under Section 70 of the Gujarat Town Planning Act. Further, though the petitioners were acquaintance of the earlier proceedings, they preferred this petition at belated stage and, moreover, the petitioners failed in pointing out any error. Therefore, prayer in present petition to quash and set aside the order dated 24.03.2023 passed by Ahmedabad Municipal Corporation is hereby rejected.
(MAUNA M. BHATT,J) NAIR SMITA V./14 Page 22 of 22 Uploaded by NAIR SMITA V.(HC00186) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 05:03:32 IST 2025