Gujarat High Court
Vasantiben Dhansukhbhai Desai Since ... vs The State Of Gujarat on 21 August, 2019
Equivalent citations: AIRONLINE 2019 GUJ 356, (2020) 1 GUJ LR 168
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SCA/6444/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6444 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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VASANTIBEN DHANSUKHBHAI DESAI SINCE DECD. THRO' HEIRS
Versus
THE STATE OF GUJARAT & 3 other(s)
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Appearance:
MR S N THAKKAR(901) for the Petitioner(s) No. 1,1.1,1.2,1.3
MR SAURABH G AMIN(2168) for the Petitioner(s) No. 1
for the Respondent(s) No. 10,11,12,13,14,15,17,18,19,20,21,23,24,5,6,8,9
MR. HARDIK SONI, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MR DA BAMBHANIA(139) for the Respondent(s) No. 2
MR HS MUNSHAW(495) for the Respondent(s) No. 4
MS DISHA N NANAVATY(2957) for the Respondent(s) No. 16,22,7
RULE SERVED BY DS(65) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21/08/2019
CAV JUDGMENT
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C/SCA/6444/2008 CAV JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, since deceased, now through her legal heirs and representatives, has prayed for the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to direct an inquiry into the disposal of land bearing Revenue Survey No.185, Block No.198, admeasuring 0-52-61 sq. mtrs and land bearing Survey No. 195, Block No.209 of village Kansad, admeasuring 0-77-90 sq. mtrs by the respondents herein.
(B) YOUR LORDSHIPS may be pleased to direct the respondent No.2 & 4 to initiate actions under the law and thereby stop further illegal construction and demolish the illegal construction made on land bearing Survey No.185, Block No.198, admeasuring 0-52-61 sq. mtrs and land bearing Survey No.195, Block No.209 of village Kansad, admeasuring 0-77-90 sq. mtrs.
(C ) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus directing the respondents their officers, servants and agents to re- grant land bearing Revenue Survey No.185, Block No.198 admeasuring 0-52-61 sq. mtrs and land bearing Survey No.195, Block No.209 of village Kansad, admeasuring 0- 17-90 sq. mtrs to the petitioner upon payment of occupancy price.
(D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents herein to ensure that no activities of construction, transfer, alienation or the like are carried out in respect of the land bearing Revenue Survey No.185, Block No.198 admeasuring 0-52-61 sq. mtrs. And land bearing Survey No.195, Block No.209 of village Kansad, admeasuring 0-77-90 sq. mtrs, or in respect of super structures thereon.
(E) An ex-parte ad-interim relief in terms of prayer (D) above may kindly be granted.
(F) Such other and further reliefs as may be deemed Page 2 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT just and proper in the facts and circumstances of the present case may kindly be granted."
2. This writ application was filed by Vasantiben Dhansukhbhai Desai, a widow with 60% visual disability. Vasantiben passed away on 17th January, 2015. In such circumstances, her son, namely, Narendra Dhansukhbhai Desai and her two daughters, namely, Pinalben Dhansukhbhai Desai and Tejalben Dhansukhbhai Desai were brought on record as the legal heirs. The son, namely, Narendra is a patient of cerebral palsy, having 75% disability.
3. The facts of this case are extremely gross and disturbing. The writ applicants seek to challenge the arbitrary, illegal and highhanded action of the Gujarat Slum Clearance Board (GSCB), the respondent No.3 herein of disposing of the subject land which, at one point of time, was owned by the writ applicants. The land in question, owned by the writ applicants, was acquired by the GSCB in the name of "public purpose" for the construction of residential units for the Economically Weaker Sections (EWS) and the persons belonging to the Lower Income Group (LIG). The writ applicants pray for the re- grant of the land bearing Revenue Survey No.185, Block No.198 admeasuring 0/52/61 sq. mtrs and the land bearing Survey No.195, Block No.209 of village Kansad, District: Surat, admeasuring 0/77-90 sq. mtrs on payment of the occupancy price.
4. The facts, giving rise to this litigation, are as follows:
4.1 The husband of the writ applicant was the original owner of the parcels of land bearing Revenue Surveys No.185 (Block Page 3 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT No.198, admeasuring 0-52-61 sq mtrs) and 195 (Block No.209 admeasuring 0-77-90 sq. mtrs) respectively situated at the Village: Kansad, Taluka: Choryasi, District: Surat.
4.2 On 17.08.1981, a notice for acquisition under Section 4(1) of the Land Acquisition Act was issued by the State Government and the same was received by the husband of the writ applicant on 6th March, 1982.
4.3 Upon receipt of the aforesaid notice, the husband of the writ applicant lodged his objections dated 19th March, 1982. One of the objections was that the proposed acquisition was not for any public purpose and that the question of acquiring his land for the Slum Clearance Board did not arose as there were no slums in an area of ten miles from the said land. The respondent authority, without considering the objections raised, proceeded with the acquisition proceedings and, ultimately, acquired the land of the writ applicant for the Gujarat Slum Clearance Board (GSCB).
4.4 On 15th March, 1986, the State Government passed an order of acquisition. A meager compensation to the tune of Rs.5/- per sq. mtr, i.e., Rs.12,000/- per Vigha, was paid to the writ applicant. Although the land was acquired in the year 1986, yet, even thereafter, for a period of almost 18 years, the land remained unutilized/not used by the respondent authority for the purpose, for which, it was acquired. Not a single unit was constructed on the said land for the members of the EWS/LIG (Economically Weaker Section/Lower Income Group).
4.5 On 11th November, 2003, the writ applicant, upon Page 4 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT making an inquiry, came to know that the Gujarat Slum Clearance Board had abandoned the project of construction of houses for the Lower Income Group (LIG) people/ Economically Backward Class (EBC) people and, therefore, the writ applicant made several representations to the authorities for the re-
grant of the land acquired from the writ applicant.
4.6 Various representations were made by the writ applicant to the then Chief Minister of the State, who vide letter dated 24th November, 2003, directed the authorities to look into the matter and do the needful.
4.7 Despite several other representations made to the concerned authorities, no action whatsoever was taken by the respondent authorities. In such circumstances, the writ applicant preferred the Special Civil Application No.13825 of 2005 before this Court, seeking re-grant of the land which was acquired by the authority for a 'public purpose'.
4.8 This Court, vide order dated 11th July, 2005, disposed of the above referred special civil application, directing the respondent No.2 to consider the Special Civil Application No.13825 of 2005 as a representation of the writ applicant and take appropriate decision as expeditiously as possible, preferably within a period of three months from the date of the receipt of the copy of the order.
4.9 The respondent No.3, Slum Clearance Board, vide letter dated 16th August, 2005, informed the writ applicant that in view of the decision taken by the Town Planning Department dated 1st March, 2004, nothing further was Page 5 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT required to be done in the matter. In the said letter, it has been stated that the Gujarat Slum Clearance Board was unable to construct the houses on the land of the writ applicant and in such circumstances, the respondent No.3-Board had sub- divided the land into plots of 25 sq. mtrs each and had disposed of the sub-plots to the people belonging to the Lower Income Group by way a public auction and that the plots were not sold to any private developers. However, according to the writ applicant, although the above referred letter is said to have been sent to him, yet the same was never served upon him and that he received the said letter, for the first time, along with the letter dated 16th August, 2005.
4.10 The respondent No.2-Collector, vide letter dated 26th September, 2005, rejected the representation/request made by the writ applicant for the re-grant of the land on the ground that the land had already been divided into plots of 25 sq. mtrs each and that the same were sold to the people belonging to the weaker sections of the society and, therefor, the land cannot be re-granted to the writ applicant, as demanded.
4.11 The aforesaid decision was purportedly taken pursuant to the directions issued by this Court in the Special Civil Application No.13825 of 2005.
4.12 In the year 2007, the writ applicant was shocked and surprised to learn that luxurious twin bungalows and row houses were being constructed on the same land, admeasuring 100 to 225 sq. mtrs each and over and above the same, the construction of those bungalows was being carried out by the private builders and, therefore, it was apparent that the land Page 6 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT was not used for the purpose, for which, the same was acquired by the respondent authority and that no sale of plots was undertaken as conveyed to the writ applicant vide letter dated 26th September, 2005. The houses which were constructed on the land in question were being sold to the public at large for a consideration of Rs.18 Lakh each. It was, therefore, apparent that the respondent authorities, in collusion with the builders, had sold out the lands of the writ applicants to the private builders and that the land was not used for the purpose, for which, it was acquired nor the land was sold to the persons of the LIG/EWS as projected in the records as also the letters addressed to the writ applicants.
4.13 The writ applicant, vide letter dated 4th April, 2007, sought information from the Collector, Surat under the Right to Information Act as regards the use of the land by the authorities, the transfer of the land and also as regards the conditions of transfer. The Collector, Surat, vide its letter dated 9th April, 2007, informed the writ applicant that the same was not falling within his jurisdiction and forwarded the said application to the GSCB.
4.14 The respondent No.3- Gujarat Slum Clearance Board, vide its letter dated 12.06.2007, informed the writ applicant that the land bearing Survey No.185 came to be divided into 38 plots and the land bearing Survey No.195 came to be divided into 69 plots of 25 sq. mtrs each and that the same came to be allotted to the people belonging to the weaker sections of the society and that those plots were allotted by way of auction. However, the details with respect to the tender documents consisting of the conditions of the allotment and the copy of Page 7 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT the applications made by the allotees of the plots were not supplied to the writ applicant.
4.15 The record reveals that only 47 plots were sold by way of auction and the remaining 70 plots were given away without auction as per the Collector's report dated 25th January, 2010.
4.16 The writ applicant addressed a letter dated 2nd July, 2007 to the Surat Urban Development Authority under the Right to Information Act, seeking information as to whether any development permission was granted by the SUDA. She also sought for the copy of the sanctioned Development Plan (Revised) and the Plinth Inspection Report and whether the construction, as carried out by the private builders, was approved or not.
4.17 The Surat Urban Development Authority (SUDA), vide its letter dated 20th July, 2007 very reluctantly provided the information sought for by the writ applicant under the RTI Application. However, some rekevabt information, as sought by the writ applicant, was withheld. Therefore, the writ applicant preferred the RTI Appeal. The said appeal came to be decided and disposed of by the Appellate Authority, SUDA, vide order dated 31st August, 2007.
4.18 On 7th August, 2007, the writ applicant addressed a letter to the Chairman, SUDA informing that the construction put up on the land bearing Revenue Survey Nos.185 and 195 respectively was not in accordance with the plan which was approved by the SUDA in the year 2005 and, therefore, the construction was absolutely illegal and not as per the Page 8 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT approved plan and thereby requested the respondent authorities to take immediate action and further to stop the illegal construction which was going on in the said land.
4.19 Notices under the Town Planning Act were issued to the plot holders who had carried out the unauthorized construction and to whom the plots were sold by the GSCB.
4.20 Although the notices were issued by the authority, yet no action was taken by the authority against the unauthorized construction put up by the builders. It was the duty of the Slum Board to ensure due compliance with the terms and conditions of the development permission.
4.21 One letter dated 20th June, 2008 has also been produced with the affidavit-in-reply, wherein necessary clarification was sought from the respondent No.3. The GSCB clarified that the plots were allotted to the beneficiaries and the individual allottees were required to obtain the necessary permission from the SUDA.
4.22 A letter dated 16th June, 2008 was addressed to the Principal Secretary, Urban Development & Urban Housing Department by the Chief Executive Officer, SUDA with regard to the aforesaid lands admeasuring 53,479 sq. mtrs stating that the development permission (for 25 yards plots) had been granted for 534 Units (for EWS) and (for 40.15 yards plots), had been granted for 743 Units (for LIG), wherein it was stated as under:-
"That the Development Permission sought by the Page 9 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT Chairman, Radhakrishna Society for said land has been refused.
That as per the records, the GSCB continues to be the owner of the subject land.
That construction has been completed on 255 plots and that total 128 buildings are found to be amalgamated plots, whereas construction of 232 plots under progress where also the amalgamation of plots is done without any permission.
That as per condition No.10 of GSCB terms/condition of allotment, the allottee shall not sell the plot without prior permission of the Board and in case of Breach, the possession of the plots shall be resumed.
That despite demand, no information being divulged by GSCB and that allottees have amalgamated the plots and constructed Row Houses. "
4.23 A letter dated 27th June, 2008 was also addressed by the respondent No.3-G.S.C.B to the respondent No.4-SUDA stating as under:
"No revised permission obtained by the GSCB before conducting the auction.
Development permission was given to the SLUM Clearance Board and not to the Individual Plot Holders.
Even though the plots were allotted to the beneficiaries, yet the name of the GSCB is still reflected as an owner of the land in question in the government records, and that therefore there is no question of granting the development permission to the individual holders.
That the Board has even given the construction permission on the land on which there was no development permission granted by the SUDA.
As per the assurance given by the GSCB it was the responsibility of the GSCB to comply with the guidelines of the GDCR and therefore, the responsibility is of the Board to control the construction/development activities.Page 10 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
On the above issues, the clarification dated 20th June, 2008 was not accepted by the SUDA."
4.24 In such circumstances, referred to above, the present writ application came to be filed by the writ applicant before this Court contending inter alia that a huge fraud was being perpetrated by the Gujarat Slum Clearance Board in collusion with the private builders and that whilst making a show that the designated land had being auctioned in the form of Plots admeasuring 25 yards each, the fact remains that huge bungalows and Row Houses had being constructed instead.
4.25 This Court, vide order dated 22nd April, 2008, issued Rule and granted ad-interim relief in terms of para-11(D). The order reads thus:
"RULE. Until further orders, there shall be ad-interim relief in terms of para-11(D). Direct service is permitted today."
4.26 An affidavit-in-reply has been filed by the respondent No.4, duly affirmed by one Shri Kiritkumar Bhailalbhai Bhatt, C.E.A., Surat Urban Development Authority, Surat. In the said affidavit, it has been stated that the development permission was granted by the SUDA to the Slum Clearance Board on 20 th March, 1990 for constructing the residential units and revised permission was granted on 12th March, 2006 and necessary action against the unauthorized construction put up should be taken by the SUDA. It has been further stated in the affidavit that the development permission/Revised Permission was issued in favour of the GSCB for the construction of the cost houses and the same was for construction of houses Page 11 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT admeasuring 25 sq. mtrs (however the development permission was never given to the individual plot holders). That the plot holders had put up construction unauthorizedly without getting the plans approved from the SUDA. The affidavit-in-reply states as under:
"(2) it is most respectfully stated that Gujarat Slum Clearance Board had approached the respondent No.4 herein for development permission and sanction of the plans & layouts for various revenue survey numbers of Village Sachin and Village Kansad. It is submitted that the development permission dated 20.03.1990 was issued in favour of Gujarat Slum Clearance Board for construction of residential units on land bearing Survey No.194 (Paiki), 195, 196, 197, 198 (Paiki), 199 and 200 of Village Kansad admeasuring 53,479 sq. meters. The respondent No.4 had also granted revised development permission on 12.09.2004 so far as the above referred revenue survey numbers are concerned and also issued development permission for residential construction on revenue survey No.180, 185 and others admeasuring 1,10,823 sq. meters. It submitted that the said construction was of low cost type and the permission was for construction of quarters admeasuring 25 sq. meters. The respondent No.4 submits that later on revised permission was issued on 28.04.,2005 for various revenue survey numbers of Village Sachin and Village Kansad including revenue survey No.195 of Village Kansad.
3. The respondent No.4 submits that on receipt of complaint about unauthorized construction on revenue survey No.185 & 195 of village Kansad and other piece of land, it was thought fit to issue notices to the concerned parties on 18.08.2005, 24.10.2005, 07.09.2005, 13.10.2006, 18.10.20065, 07.02.2007, 20.04.2007 etc to the concerned wrong doers irrespective of survey numbers/block numbers of the land. It is pertinent to note that the said unauthorized & illegal construction was being put up by the plot holders who were sold/allotted plots by Gujarat Slum Clearance Board. It is submitted that the plot holders have started putting up of construction unauthorizedly without getting any plans Page 12 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT & layouts sanctioned from Surat Urban Development Authority and the copies of such notices are annexed herewith and marked as Annexure-A collectively. The respondent No.4 submits that even letters were also addressed to the Gujarat Slum Clearance Board on 11.10.2007, 2nd January/2nd February 2008 and 13.02.2008 drawing its attention about the unauthorized construction being raised at the site and the copies thereof are annexed herewith and marked as Annexure-B collectively.
4. The respondent No.4 submits that meanwhile the petitioner herein has approached the Hon'ble High Court of Gujarat by way of filing a Special Civil Application No.6444 of 2008 praying for various relief and the orders of the Hon'ble Court were served upon to the respondent No.4 on 01.05.2008. It is submitted that again the respondent No.4, addressed a letter dated 11.06.2008 to the respondent No.3 in this regard and even clarification also sought and a copy thereof is annexed herewith and marked as Annexure-C. It is submitted that thereafter a letter dated 20.06.2008 was received from Gujarat Slum Clearance Board stating therein that the plots are allotted to the beneficiaries and the concerned allottees are required to obtain necessary permission from Surat Urban Development Authority and a copy of letter dated 20.06.2008 is annexed herewith and marked as Annexure-D. In view of this, the respondent No.4 addressed a fresh letter to the respondent No.3 seeking further details and categorically informing that the contents of letter dated 20.06.2008 were not at all acceptable and it was the duty of the respondent No.3 to comply with the terms and conditions laid down in the development permission and a copy thereof is annexed herewith and marked as Annexure-E. It is most respectfully stated that even the respondent No.1 had also addressed a letter to the respondent No.4 to look into the matter on 04.06.2008. The respondent No.4 submits that subsequently a letter 16.06.2008 was addressed to the respondent No.1 giving full details about the existing situation in the site and a copy thereof is annexed herewith and marked as Annexure-F. It is submitted that meanwhile the respondent No.4 herein has issued notices to the wrong doers on 05.05.2008, 26.05.2008, 27.05.2008, 08.09.2008 etc who have put up construction on various plots of different revenue Page 13 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT survey numbers of village Sachin and Village Kansad. It is stated that even the Executive Engineer of the respondent No.3 was also addressed a letter on 4th October/4th November 2008 to attend the office of the respondent No.4 on 17.11.2008 and a copy of said letter is annexed herewith and marked as Annexure-G.
5. The respondent No.4 humbly states that in all 20 houses were sealed on different revenue numbers on 11.06.2008 and 12.06.2008. The respondent No.4 submits that immediately thereafter security guard of Private Security Agency are placed at the site to prevent further illegal & unauthorized construction. It is stated that so far as the revenue survey No.195 & 185 of Village Kansad are concerned, they are unauthorized construction on the plots allotted by the Gujarat Slum Clearance Board while some of the plots are still open plots.
6. In view of the above mentioned facts & circumstances it is clear that the development permission were granted and the plans & layouts were sanctioned only in favour of Gujarat Slum Clearance Board and the allottees of plots have put up unauthorized construction at the site without getting any development permission and plans & layouts sanctioned from the respondent No.4 and therefore, necessary actions are taken prior to the orders of this Hon'ble Court in the present Special Civil Application and even thereafter. The respondent No.4 assures and undertake to the fact that necessary actions would be taken against the wrong doers at the site in accordance with the provisions of Gujarat Slum Planning & Urban Development Act, 1976 in the interest of justice. Therefore, this Hon'ble Court is humbly prayed to reject the present Special Civil Application in limine with cost in the interest of justice."
4.27 I take notice of the fact that the Surat Urban Development Authority had filed counter affidavit for the purpose of opposing the Special Leave Petition which was preferred by the occupants before the Supreme Court. In the said affidavit filed on behalf of the SUDA, the following was stated:
Page 14 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT"4. I submit that the land in question was acquired for Gujarat Slum Clearance Board. The Gujarat Slum Clearance Board has acquired huge pieces of land bearing Revenue Survey Numbers of village Kansad, Taluka: Choryasi of District: Surat, after due procedure laid down the provisions of the Land Acquisition Act for establishment of residential colony for weaker section of the society. Thereafter, the Gujarat Slum Clearance Board approached the answering respondent for development permission and sanction of plan, lay out for various revenue survey numbers of village Sachin and village Kansad.
5. I submit that the development permission was granted in favour of the Gujarat Slum Clearance Board on 20.03.1990 for construction of residential unit on the land bearing Revenue Survey Nos. 194-P, 195, 196, 197, 198- P, 199 and 200 of village Kansad admeasuring 53479 sq. mtrs. SUDA also granted revised development permission on 12.03.2004 so far as above referred survey numbers are concerned and also issued the development permission for residential construction which includes revenue Survey Nos. 195 and 185.
6. I submit that it seems that the Gujarat Slum Clearance Board allotted 117 plots to different owners and out of 117 plots, only 17 plots were constructed. These 17 plots were amalgamated without permission of SUDA along with other three sub-plots of other land of survey numbers and made into 10 bigger sub-plots. The construction permission provides construction of only ground floor for one living room covering living-cum- cooking room and toilet and purchaser of the land without permission of SUDA has amalgamated two side by sub-plots and constructed ground as well as first floor. The margins are encroached upon with illegal construction.
7. I submit that the Gujarat Slum Clearance Board has allotted the land instead of allotment of low cost housing for weaker section of the society with a condition that building is to be constructed as per the approved plan of SUDA with prior intimation of construction in required form and also with the inspection of stage wise progress. The construction was made by the petitioner and others without intimating/informing above, which is mandatory Page 15 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT under the provisions of the Gujarat Town Planing & Urban Development Act, 1976 and General Development Control Regulation, approved by the State Government.
8. I submit that the original land owners one Vasantiben Desai, whose land bearing Revenue Survey No.185 & 195 of village Kansad was acquired by the Gujarat Slum Clearance Board, approached the Gujarat High Court by way of filing Special Civil Application No. 6444 of 2008. At that time the petitioners of the said petition also raised contention about the illegal construction on Survey No. 195 and 185. The SUDA thereupon made survey and immediately issued notices on 26.05.2008, 27.05.2008, 05.07.2008, 08.09.2008 and 09.09.2008 to the persons who have put up construction on various plots without taking permission for alteration and SUDA immediately served notices for maintaining status quo for illegal structure including 20 houses in question on different revenue survey numbers.
9. I submit that SUDA has also placed the security guards of private security agency as the entire construction is illegal, unauthorized and not in accordance with the provisions of GDCR as well as Gujarat Town Planning & Urban Development Act.
10. I submit that after hearing the petitioner, Slum Clearance Board and the SUDA in Special Civil Application No. 6444 of 2008 the Gujarat High Court passed an order on 06.10.2009 to take action of demolishing illegal construction after following due process of law. I submit that SUDA has prepared plan and information report of unauthorized construction on Survey No.195 and 185. Annexed hereto and marked as ANNEXURE-R/1 collectively the copies of plan and information Report.
11. I submit that pursuant to the order passed by the Gujarat High Court, SUDA issued notices on 07.10.2009 on the occupiers of land under reference. The petitioner of this SLP and other plot holders have submitted their reply of said notice on 12.10.2009. The SUDA thereafter fixed the time for hearing the said notice and hearing was fixed on 07.11.2009. The copy of the said information about the hearing is annexed hereto and marked as ANNEXURE R/2 to this Affidavit.Page 16 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
12. I submit that meanwhile the petitioner approached this Hon'ble Court and, therefore, the hearing did not take place and final decision is yet to be taken by SUDA.
13. I submit that after the order was passed by the Gujarat High Court the petitioner have not approached the Gujarat High Court for review of order and the petitioners have directly approached this Hon'ble Court.
14. I submit that the petitioners are the wrong doers. They have made construction without obtaining permission and the same is not only unauthorized construction, but illegal construction, and therefore, this Hon'ble Court is requested not to exercise its extraordinary jurisdiction by entertaining this Special Leave Petition. "
4.28 An affidavit-in-reply has also been filed by the respondent No.2, duly affirmed by one Shri P.K. Barhatt, Land Acquisition Officer, Branch-I, Surat, inter alia, stating in para-6 as under:
"I say and submit that the land situated at Mouje:
Kansad, Taluka: Choryasi was proposed to acquire by the respondent No.3 i.e. Gujarat Slum Clearance Board and that proposal was received by the present answering respondent on 03.11.1979 by JS/Vashi/3503/79 that for acquiring the said land primary inquiry was initiated and notification under Section 4 came to be published in the gazette on 09.07.1981. The notice was also published under Section 4/1 and also affixed at notice board of the Taluka office on 21.08.1981 and also on the disputed land also. After completing the due procedure, another notice under Section 9 of the Act was also affixed at the disputed land on 22.08.1984 and at the office of the Taluka Panchayat on 07.02.1985."
4.29 An affidavit-in-reply also came to be filed by the respondent No.1, duly affirmed by one Shri K.M. Panchal, Senior Town Planner, Gujarat State, Town Planning and Valuation Department, Gandhinagar. The affidavit reads thus:
"I, K.M. Panchal, Senior Town Planner, Gujarat State, Page 17 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT Town Planning and Valuation Department, Gandhinagar, do hereby solemnly affirm and state on oath as under:-
1. I say and submit that I have perused the copy of the petition filed by the petitioner in the above mater and I am conversant with the facts and circumstances leading to the filing of the present petition and, therefore, I am in a position to depose what is stated hereunder:
2. I say and submit that I do not admit any of the allegations, averments and contention raised in the petition and the same are hereby denied categorically.
3. I say and submit that I am filing the present affidavit-in-reply with a view to oppose the admission of the present petition and grant of any interim relief in favour of the petitioner and I reserve my right to file the detailed affidavit as and when necessary.
4. I say and submit that, none of the fundamental or legal right of the petitioner has been violated because of any action or inaction on the part of the present respondent and, therefore, the present petition is not maintainable in law and the same deserves to be dismissed in limine.
5. I say and submit that my non dealing with para-
wise may not be construed as admission on my part.
6. I say and submit that the Surat Development Authority (hereinafter referred to as "SUDA" for short) had prepared and submitted the first Draft Development Plan to the Government on dated 04.08.1981 for sanction under section 16 of the Gujarat Town Planning and Urban Development Act, 1976 and the same was sanctioned by the Government of Gujarat vide notification No.GRV/460 of 1986/DVP 1481-384 (45) -1 DATED 31.01.1986 which came into force from dated 03.03.1986.
7. I say and submit that then after as per section 21 of the said Act, revised development plan was prepared and submitted for sanction to the Government by SUDA and the Government vide its notification No. GH/V/100 OF 2004/DVP-1403/3307/L dated 02.09.2004 sanctioned the revised development plan and it came into force from date 15.09.2004.
Page 18 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT8. I say and submit that as per the proposals of said D.P the suit land along with the other lands was reserved for Housing for G.S.C.B.
9. I say and submit that as per submission of the petitioner, the land in dispute i.e. agricultural land bearing revenue survey No.185, Block No.198, admeasuring about 0-77-90 sq. mtrs, situated in village kansad, Taluka: Choryasi, District; Surat was acquired by respondent No.3 (G.S.C.B) from the petitioner's husband and the award was passed on 15.02.1986 by the State Government by paying compensation of Rs.5/- per sq. mtrs which is as per law.
10. In view of what is stated hereinabove, the petition of the petitioner, is required to be dismissed in limine."
4.30 One another affidavit-in-reply also came to be filed by the respondent No.3, duly affirmed by Shri Bharatbhai Shah, S/o. Ramniklal Shah, serving as an Executive Engineer with the respondent No.3. I may quote the relevant paras of the said affidavit as under:
"(E) That, major part of the project have been completed by the Gujarat Slum Clearance Board by providing for EWS housing, and LIG housing etc and part of the housing project and its actual executions were deferred though planned projected till the money cycle is properly moved in proper directions. It is submitted that, beneficiaries have to pay the allotment consideration by way of installments and failure to pay the said installments stalled the wheel of the money circulation and execution of the projects.
(F) That, considering the fact that the money cycle, by way of paying the installments have been stalled at the instance of the beneficiaries, and huge amount of Rs.48.78 Crores approx. have become due and payable to the HUDCO, and the Government of Gujarat, was constrained to make policy decisions and accordingly, further constructions activities were restricted and regulated.Page 19 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
(G) That, for the rest of the project and land, the projections have been made on the basis of providing shelter under the housing activities to the beneficiaries, who fall within the criteria of Economic Weaker Section, and or Lower Income Group, and or group identified by the public policy framed from time to time by allotting the site and service plots, to be developed by the beneficiaries himself on the basis of clear planning and projection have been made by the respondent No.3, and plans have been approved by the competent authorities.
The plotting beneficiaries have not been permitted to be changed from the entire project scheme and object of the Government and respondent No.3. The allotments have been subject to open competition from and amongst the beneficiaries alone and not others who are falling within the criteria as provided under the scheme of the project.
(J) That, in the year 2003, the Government directed the Board to take all the possible steps for disposal of the premises, and plots, and to make all the efforts for the recovery of dues. Various schemes were drawn for allotment of the vacant premises and plots and for recovery of the dues.
(K) That, accordingly, applications by way of competitive bids were invited in the year 2003 by public Advertisement, published in the daily News Paper. Only those applicants were permitted to participate who fall within the criteria laid down under the policy of the Government and Board. The open auction bids were invited on the site for respective plots admeasuring 25 mtrs. And subject to fulfillment of criteria of Urban Poor, member of the economical weaker section of the society and bids have been accepted subject to scrutiny. The applications were scrutinized, and on payments of prescribed consideration, the allotments have been made, in January, 2004 subject to all terms and conditions including conditions for development of the plots, as per the plans and program approved by the SUDA, the respondent No.4 herein.
(M) The persons claiming lands including through the intermediaries of certain personalities, and/or under the guise of Ori. Land Owners family members, petitions were presented and they are disposed of. It is further Page 20 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT submitted that, just similar contentions were raised in Special Civil Application No.1735 of 2006. This Hon'ble Court, Coram Justice/s K.R. Vyas & Akshay H. Mehta JJ, vide judgment and order dated 20.02.2006, pleased to disposed of the petition, with observation and directions.
(Q) That, considering the facts that, presently only few officers and employees are manning the Board, pending final decision making process. Taking advantage of the facts that, for taking steps of evictions etc. for breach of the terms and conditions of the allotment, for want of decision making process and authorization etc. and want of man power of the Gujarat Slum Clearance Board, plot allotted members may have taken the advantage of the situation and in that view of the facts, the allotment which is subject to terms and conditions that, the construction over the plot shall be as per the approved plans of the SUDA i.e. Town Planning Authorities wedded with powers and authority to demolish unauthorized constructions if any, necessary steps are required to be taken, in accordance with the law by the competent authority including by the respondent No.4, if any deviation in development possession of the plots, are found on the projected plots. It is submitted that, various issues are required to be resolved at the highest level amongst the Gujarat Housing Board, Gujarat Slum Clearance Board and Government agencies like local authorities. For want of executive officers, and will to deal with public issues and to discharge public duties, question of encroachment, and dealing with the plots might have been occasioned and accordingly some steps have been initiated by issuing notices and it appear that on an assumption that, it is the development authorities whose permission for development is compulsory, will take all the steps in accordance with law. Besides, no decision making process has been initiated and authorities have remained on the footing that, one will take action and accordingly, steps have to be taken in accordance with law. "
4.31 The list of the allottees as produced by the GSCB clearly reveals that many of the allottees are either relatives of the office bearers of the GSCB or that multiple allotments were made in the same name for example Serial Nos. 1,2,3,13/14, Page 21 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT 79,80, 81 to 83, 33 read with serial No.105. The terms and conditions of the allotment, more particularly, the condition No.10 therein provides that no resale of the plot shall be permitted without the prior permission of the Board and in case of any breach, the possession shall be resumed. The specimen undertaking also mentions that in the case of unauthorized or illegal use, the possession of plot shall be resumed. The specimen copy of the conditions clearly stipulates that if the applicant or his family member does not have any residential plot or land in Sachin/Kansad in the radius of 8 k.m and that the applicant or his family members have not applied or purchased any building in the Gujarat Slum Clearance Board, then they shall be eligible for the plot.
4.32 The respondent No.4 addressed a letter dated 11 th June, 2008 to the respondent No.3 stating that as per the Sections 48 and 49 of the Gujarat Slum Clearance Area Act, 1973, it was the duty of the G.S.C.B to take the necessary action for the removal of the encroachment or unauthorized construction.
4.33 The respondent No.3, by its letter dated 20th June, 2008, replied to the letter of the respondent No.4 dated 11th June, 2008, stating that only the SUDA under the provisions of the Gujarat Town Planning & Urban Development Act is empowered to take the necessary action. Thus, by the said reply, the G..S.C.B clearly indulged into playing the blame game.
4.34 On 6th October, 2009, a Division Bench of this Court (Coram: Hon'ble Mr. Justice K.S. Jhaveri & Hon'ble Mr. Justice Z.K. Saiyed) passed the following order:Page 22 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
"Pursuant to the earlier order of this Court Ms. Gauri Kumari- Principal Secretary -Urban Development Area is present and made the following statement.
1. As per Gujarat Town Planning Act, 1976 it is the responsibility the development authority to control and regulate within its jurisdiction, in this case SUDA is supposed to take action on any development which is in accordance with regulations. The act does not make any discrimination with respect to ownership. Therefore in this matter SUDA shall take appropriate action as per law to take care of the construction in the said land. SUDA shall initiate the process and complete within the time limit.
2. The other aspect in the petition relates to the issues with the allotment. The Government shall in this matter appoint an inquiry and find out irregularities within the period of 6 months.
3. The land under consideration is not declared as a notified slum. Therefore the Gujarat Housing Board which inherits the Gujarat Slum Clearance Board is not responsible and cannot take any action under Slum Clearance Act. Moreover Gujarat Housing Board is also not declared as prescribed authority under the Slum Act.
Given the situation SUDA has to take the task of the demolition of illegal construction.
2. In that view of the matter, we issue following directions.
1. SUDA will issue notice to the occupiers of the land in question on or before 8th October 2009 to demolish the illegal construction and if the said notice is not implemented, 2nd notice will be issued on 30th October 2009.
2. If such demolition is not done by the occupiers during the said given time, then SUDA will start the demolition and will complete the same on or before 26th November 2009.Page 23 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
3. To comply with the, directions of this Court the State Government will direct the Collector, Surat to depute responsible officer of the area, who is not below the rank of the Dy. Collector.
4. Dy. Police Commissioner will also go with his team and will ensure smooth demolition of the illegal constructions.
3. In view of the assurance given by the State Government, the inquiry in respect of the allotment of the Plots will be conducted by the Higher Officer of the State not below the rank of the Jt. Secretary and the said report will be submitted before this Court on or before 13th April 2010.
4. It is made clear that, as requested, six months time is granted to comply with the directions and no further time will be granted. If any extension is sought it will be at the cost of the concerned officer, who may be directed to deposit necessary amount from his personal account and only thereafter necessary application shall be entertained.
5. Matter to come upon 2nd December 2009. Direct service today."
4.35 The occupant/owners challenged the aforesaid order before the Supreme Court by way of SLP (C) No.31355 of 2009. The Supreme Court stayed the direction of demolition.
4.36 On 29th December, 2009, the respondent No.4 filed a counter affidavit before the Supreme Court admitting that the illegal construction had been put up on the lands in question and that 17 plots were amalgamated into 10 bigger plots without the permission of the SUDA.
4.37 On 29th August, 2014, the Supreme Court passed the final order. The order reads thus:
Page 24 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT"Leave granted.
The appellants have filed this appeal against the order dated 6th October, 2009 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in Special Civil Application No.6444/2008 which reads as follows:
"Pursuant to the earlier order of this Court Ms. Gauri Kumari- Principal Secretary -Urban Development Area is present and made the following statement.
1. As per Gujarat Town Planning Act, 1976 it is the responsibility the development authority to control and regulate within its jurisdiction, in this case SUDA is supposed to take action on any development which is in accordance with regulations. The act does not make any discrimination with respect to ownership. Therefore in this matter SUDA shall take appropriate action as per law to take care of the construction in the said land. SUDA shall initiate the process and complete within the time limit.
2. The other aspect in the petition relates to the issues with the allotment. The Government shall in this matter appoint an inquiry and find out irregularities within the period of 6 months.
3. The land under consideration is not declared as a notified slum. Therefore the Gujarat Housing Board which inherits the Gujarat Slum Clearance Board is not responsible and cannot take any action under Slum Clearance Act. Moreover Gujarat Housing Board is also not declared as prescribed authority under the Slum Act.
Given the situation SUDA has to take the task of the demolition of illegal construction.
2. In that view of the matter, we issue following directions.
1. SUDA will issue notice to the occupiers of the land in question on or before 8th October 2009 to Page 25 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT demolish the illegal construction and if the said notice is not implemented, 2nd notice will be issued on 30th October 2009.
2. If such demolition is not done by the occupiers during the said given time, then SUDA will start the demolition and will complete the same on or before 26th November 2009.
3. To comply with the, directions of this Court the State Government will direct the Collector, Surat to depute responsible officer of the area, who is not below the rank of the Dy. Collector.
4. Dy. Police Commissioner will also go with his team and will ensure smooth demolition of the illegal constructions.
3. In view of the assurance given by the State Government, the inquiry in respect of the allotment of the Plots will be conducted by the Higher Officer of the State not below the rank of the Jt. Secretary and the said report will be submitted before this Court on or before 13th April 2010.
4. It is made clear that, as requested, six months time is granted to comply with the directions and no further time will be granted. If any extension is sought it will be at the cost of the concerned officer, who may be directed to deposit necessary amount from his personal account and only thereafter necessary application shall be entertained.
Matter to come upon 2nd December 2009. Direct service today."
The learned counsel for the appellant has contended that the aforesaid order has been passed without hearing the appellants though the order will affect the appellants. This fact has not been disputed by the respondents. Apart from the aforesaid fact, we find that the impugned order has been passed by the High Court without recording reasons for issuing such direction.
For the said reason, we set aside the impugned order Page 26 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT dated 6th October, 2009 passed by the High Court with liberty to the High Court to pass order in accordance with law after notice to the affected parties.
The appeal is allowed with the aforesaid observation."
4.38 After the matter came back to this Court from the Supreme Court, none of the private respondents or the original occupants, who had assailed the order passed by this Court dated 6th October, 2009 before the Supreme Court, preferred any application, seeking impleadment in the main matter, i.e., the present writ application. It was expected of a vigilant litigant and, more particularly, who is aware of the proceedings to prefer an appropriate application seeking impleadment. The private respondents were aware of the fact that SUDA had filed an affidavit before the Supreme Court stating that the construction put up on the land in question is illegal/unauthorized. In any view of the matter, it is the writ applicants herein who preferred the Civil Application No.1 of 2018 for impleading the private respondents as the party respondents Nos.5 to 24 respectively. This Court issued notice to the private respondents vide order dated 13th August, 2018. The notices were served upon all the private respondents, i.e., Nos.5 to 24. Only three respondents, i.e, Nos.7, 16 and 22 came forward to make their submissions through their learned advocate. Having realized the consequences of putting up the illegal/unauthorized construction and also having realized that this Court has come to know about the large scale fraud played by the officials of the Board, the private respondents started playing hide and seek game and also tried to delay the proceedings.
Page 27 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT4.39 At this stage, it is appropriate for me to make a mention that after the matter was fully heard and the judgment was kept reserved, one another civil application came to be preferred by the so called occupants of the houses constructed on the land in question with a request to hear them. This Court could immediately make out that the occupants, out of fear, started transferring the properties. As the properties kept on changing hands, the occupants started coming before this Court. Having regard to the fact that the arguments were concluded and the judgment was reserved, I declined the request of Mr. Gautam Joshi, the learned counsel who preferred the civil application, seeking impleadment in the main matter.
4.40 On 4th July, 2016, the respondent No.4 filed a further affidavit-in-reply. In the said affidavit, the respondent No.4 has clearly supported the case of the writ applicant and accepted that various illegal construction have been put as asserted by the writ applicant and that the construction is not in accordance with the development permission granted to the Gujarat Slum Clearance Board. It is further stated that on many plots, bungalows have come up by merger of the plots admeasuring 25 sq. mtrs each. It is further stated in the affidavit that in most of the cases two plots have been merged into one plot and residential units have been constructed and that in one case, seven plots+margin area came to be merged into one plot and a huge super structure is constructed, whereas in another case five plots+ margin area has been merged into one plot and a super structure consisting of the Ground Floor and three stories has been constructed at the site whereas as per the development permission dated 12th Page 28 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT March, 2004 granted to the Gujarat Slum Clearance Board, what is permitted is the construction of two low cost residential units having only Ground Floor admeasuring 18.54 sq. mtrs, and for the low income group, the residential units with construction of 29.20 sq. mtrs. It is further stated that the present status at the site is altogether different and the construction is not in accordance with the development permission dated 12th March, 2004 granted to the Gujarat Slum Clearance Board and, therefore, appropriate orders be passed in the interest of justice.
4.41 In the course of the hearing of this writ application, the State Government tendered a report of the Municipal Commissioner, Surat Municipal Corporation, Surat prepared as per the directions issued by this Court vide order dated 6th October, 2009. The relevant observations in the report of the Commissioner are as under:
"Vide letter No. PRCH/122009/657/GH dated 13/10/2009 of the Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar, the S.C.A. No.6444/2008 was filed by the Gujarat Slum Clearance Board in the Hon'ble High Court in regard the allotment of plots to the beneficiaries. In the aforesaid Petition, as per the oral order dated 6/10/2009 of the Hon'ble High Court, an inquiry has been assigned in regard the matter of allotment of plots of land in question made a village Kansad. The date of first inquiry in that regard was kept on30/11/09. On the said date, Shri B.R. Shah, the Executive Engineer of the Slum Clearance Board Cell, Gujarat Housing Board, Ahmedabad had remained present. Submission was made by him that, since Shri A.V. Kalariya, the Officer on special Duty of Slum Clearance Cell has been assigned special duty vide letter dated 10/11/09 of the General Administration Department, in connection with Ranotsav and Chintan Shibir etc. in Kutch District, he could not remain present.Page 29 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
Shri Shah himself has remained present. He has submitted his written letter dated 27/11/09. On the said day, it was asked to submit the following details in regard the record which is available with Slum Clearance Board.
(1) How many total plots are situated in land in question i.e. Block No.198 and 209?
(2) When the advertisement was given for allotment of these plots?
(3) If the money has been paid by the beneficiaries in connection with the allotment after making allotment, then in which Bank the same has been deposited, by which cheque No. or whether the same have been deposited in cash. It was decided to produce the said details.
(4) Which type of construction was to be done in the plots allotted?
(5) Who had to do the supervision work at the time of carrying out this construction as well as, when the allotment was done i.e. in the year 2003, whether the intimation was given to SUDA in regard that the proceedings have been done as per the terms of the allotment or not?
(6) What arrangement was made by SUDA to see as to whether the construction has been done at the site as per the plans approved or not? Further, intimation in regard the terms of the allotment and regarding beneficiaries of the allotment was made to SUDA during the year 2003 or not?
(7) Actually when the possession had been handed over after making allotment?
(8) Whether complaints or application had been received at the time of allotment or not?
(9) As per the terms of allotment, the construction was commenced within the time limit was done or not as per the term as regard time limit or not? and in which plots and whether the construction has been commenced within time limit or not and in which plots the Page 30 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT construction is not done within time limit, as well as what type of situation is at present of these plots?
(10) It was asked to submit details as to whether the construction done after allotment of plots is against the terms and if not done then whether the notices were issued or not and, when the advertisement of original allotment done, was made and, total how many applications were received in pursuance of the advertisement.
The details in regard the points which were told to submit on the first date 30/11/09, the said details of the said plots have been submitted on 16/12/09 by the Officer on special duty of Slum Clearance Board. Further, Shri A.V. Kalariya, the Officer on Special Duty, Slum Clearance Cell was told to submit more details. He has stated as under
in his reply on the date of hearing of 16/12/09.
(1) He has resumed in Slum Clearance Board in July, 2008.
(2) He has submitted that, the money of the total 117 plots in question, by the persons to whom the plots have been allotted, have paid in cash in Indian Bank, Sachin.
The same have not been paid by way of Cheque.
(3) After making allotment by the Board, the allotment letters as well as, the plot holders have been provided with the maps of plots by Slum Clearance Board and, the lay out plans of the building approved by SUDA have been provided.
(4) After giving of building-plan, the persons to whom the plots have been allotted, no any details are on the records of Slum Clearance as to when the said persons have commenced the constructions.
(5) There are no any details on the record of Slum clearance, about construction of the building in addition to the commencement date of construction and, no supervision has been done during the commencement of construction and during the period of construction.
(6) The reply to the points which was sought for earlier Page 31 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT as discussed on 30/11/09, has been submitted on 16/12/09 which is as under.
Point No.1: In the land in question i.e. in Block No.198 and 209, total 117 plots are situated.
Point No.2 For the sale of these plots the advertisement
was published on 25/10/2003 in local
newspapers Gujarat Mitra and Gujarat
Samachar.
Point No.3 The details of payment by the beneficiaries who
have been succeeded in public auction, in cash in account of the Board in Indian Bank, Sachin Branch the details of which are furnished in the statement annexed.
Point No.4 The construction in the plots allotted was to be done as per the plans approved by SUDA in the plots as per the maps.
Point No.5 For carrying out the construction, the copy of the map approved by SUDA has been given to the beneficiaries. In the approved map, the note is made that, the responsibility of doing the construction as per the approved maps in the plot as well as the responsibility of doing construction as per the I.S. Specification shall be of Architect/ Engineer/ Surveyor/Structural Engineer of the Applicant. As per the Term No.19 of the allotment done, this re8p0nsibility is held of the Applicant. No intimation is given to SUDA from this office.
Point No.6 The responsibility of commencing the construction as per the map approved by SUDA shall be of the respective plot holder and the allotment has been granted subject to the said term. No any intimation has been given to SUDA from this office. But, the engineer of the respect plot holder shall require to give intimation to SUDA in prescribed form.
Point No.7 The statement showing the details of actual handing over the passion at the site after allotment is annexed.
Point No.8 There does not appear that any complaints or applications have been received at the time of allotment of the aforesaid plots.
Page 32 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENTPoint No.9 As per Term No.19 of the Allotment, it is a term that the plot holder shall got the plan from the appropriate authority and after getting estimation within three months' time and to complete the construction as per the purpose of the plot. At present, out of these plots, constructions have been done in 18 plots. In remaining plots, the construction is not commenced.
Point No.10 After allotment of the plots, if the construction is made against the terms, then, no notices have been given from this office. In pursuance of the advertisement, total 163 applications have been received for the aforesaid plots. The statement showing the said details is annexed.
The details of total 117 plot holders have been submitted. on 16/12/09 as per the statement annexed herewith. It was told on 16/12/09 to submit more details within 10 days.
(1) From which date to which date the public auction was done in regard these plots in question? The date of the public auction be intimated.
(2) On the date of public auction, by how many plot holders have obtained the plot after taking part in the public auction? The details thereof.
(3) After public auction was made, what type system was prepared for allotment of the remaining plots? How the disposal of the remaining plots has been done? The details thereof.
(4) The details of the papers, allotment letter as well as map given to the person who has been allotted plot and, in which method the allotment has been given?
(5) If the basic price (upset price) per plot is fixed by the Board for the auction of the plots, then, how the same is fixed? Further what was the upset price in the public auction and the method of fixing the same and its detail. If the approval of the Board. has been obtained. by the board of the upset price then, a copy of its resolution.
Page 33 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT(6) If the plots have been allotted by the public auction then the copy of the proceedings of public auction prepared by the Board.
(7) After the Public auction is over, how many application out may plot holders out of 117 plots have been obtained subsequently and, the method adopted for the allotment of plot in the said applications which have been received subsequently.
(8) 'After the public auction was over, and after allotment plots in question, if approval has been obtained by the Board in regard the entire work then, a copy of the resolution thereof.
(9) The details which were called for as discussed on 16/12/09, the following details thereof have been submitted by him vide Letter No. Slum.cell/Lega1/Court case/738/09 dated 31/12/09.
(1) The public auction was conducted on 18/11/03 as well as on 19/11/03 in regard the plots in question.
(2) During the auction dated 18/11/03, allotment of total 38 plots was done to the plot holders, whereas, during the auction dated 19/11/03, allotments of 8 plots was made to the plot holders. Thus, on the date of 18/11/03 and 19/11/03, in public auction on both the days, auction was done of 47 plots out of total 117 plots, whereas, for the remaining plots, offers were called. for after giving of advertisement in Gujarat Mitra on 27/11/03. Every day allotment of two plots have been made i.e. (1) 44 plots on 3/12/03, (2) 17 plots on 04/12/03 (3) 5 plots on 05/12/03 5 plots (4) 2 plots on 11/12/03, (5) 2 plots on 13/12/03. Thus, on seeing overall, after making allotment of 47 plots in public auction dated 18/19-11-03, the allotment of remaining 70 plots left in the land in question has been made.
(3) For the plot which remained vacant after public auction, allotments have been done in pursuance of the advertisement given in Gujarat Mitra on 26/11/03. The details of the advertisement which have been given by the Board are as under:
Page 34 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT"Final opportunity to get remaining residential plots at Sachin-Kansad by way of offer."
It is hereby informed to the people who have left to obtain the residential plots in pursuance of the advertisement dated 21/10/2003, to contact personally of Secretary at the office of Board at Sachin-Kansadwith following basic evidences to get the plots on first come first basis.
Date: 28/11/2003 During 14-00 noon to 18-00 hours. Date: 29/11/2003 During 10-00 morning to 16-00 hours.
(4) After verification of the income certificate, evidence of residence as well as amount of deposit received in the tenders received in auction, the letter was being issued to the highest bidders to pay the remaining amount and, after getting the remaining amount deposited, and after obtaining the undertaking on stamp paper from the Applicant and, after obtaining the affidavit, and after giving the allotment letter, the possession of the plot was being handed over at the site after obtaining the possession receipt. The map in regard the construction approved by the SUDA was being given after taking fee of Rs.500/-.
(5) For fixing the upset price per plot: after taking the rate as per the Jantri of the year 2003 of the Board as well as after taking the rates in the agreements of the plots disposed by SUDA at Sachin, accordingly, the upset price of the plots have been decided, the note of the same has been approved by the Secretary on 8/10/03. In regard. the upset price, no approval of the Board has been obtained.
(6) The proceedings of the auction of each plot has been made, which has been placed in the original file handed over to each person.
(7) For the remaining plots left for auction, offers have been obtained after giving advertisement in the local newspaper and, after approving the offers stating rates more than the upset price and thereafter, the plots have been allotted.
(8) After making disposal of the plots as above, in the Page 35 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT Board meeting held on 16/06/05, the information has been submitted from Sr. No.4 under the head of campaign for selling the vacant plots, the Procedure of which, the details mentioned in the 109th meeting of Board, have been placed in which, the plots covered under the land in question are included.
The written as well as oral replies submitted by the Slum clearance Cell submitted on both the date viz. 30/11/09 as well as 16/12/09 have been perused. Further, written reply is also submitted by Smt. Vasantiben Desai on 16/12/09 in which she has stated that, the land from her husband has been acquired in the year 1986 for the use of Slum Clearance Board under the Land Acquisition Act. She has made representations during the year 2003-04 at different different levels. She has stated in her reply that, during the period of 29/01/04 to 24/02/04, by incorrectly preparing 'plots of 25 sq. meters and the disposal of the plots has been made by the officers of the Slum Clearance Board. They have allotted the plots without making any kind of inquiry in regard the income certificate. Each application it is stated that, the applicant is not holding land or plot or the members of his family are also not holding plot. She has stated in her reply for example that, the allotment of plot no.214, 215 and 216 has been done to Arjunsinh V. Vaghela, Vanraj B. vaghela and Kiritibhai B. Vaghela, whereas, the plot No.291 and 225 have been allotted to Vijaysinh M. Solani and Vikramsinh M. Solanki. The Plot No.227 and 228 has been given in the name of same person Yajuvendrasinh Jadeja. The Plot No.254 is allotted to Rajubhai C. Shah, Plot No.255 is allotted in the name of Rakheben C. Shah. Plot No.259 is made in the name of Sureshbhai P. Ramani, and the Plot No. 209 is made in the name (If Babubhai S. Ramani, Plot No.311 is made in the name of Manoj P. Ramani. Similarly, the plot No.307 is allotted in the name of Babubhai S. Ramani. The plot No.572, 574, and Plot No.1003 is allotted to Nanalal Family. Thus, the auction has taken place in behind the closed door between the developer and officers of Slum Clearance Board. The amount of deposit, and drafts have been issued on the same day in sequence draft numbers, the basic evidences have also been produced. The development permission has been given to the Slum Clearance Board by the SUDA on 28/4/2005 with different-different survey numbers. She has stated in her written reply that, on Page 36 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT 11/07/2005, after hearing the submission of the Applicant by the Hon'ble High Court in SCA No.13825/05, it has been directed to make disposal with 3 months. The report which has been submitted by SUDA. on 16/06/2008 in the Government in the year 2007-08 which is also submitted in her reply. The SCA No.6444/08 was filed on 22/04/08 by the Petitioner for construction of 100 to 150 yards in place of 25 meters individually in which, by admitting the case by the Hon'ble Court, it has been instructed that, in the land in question no activity of construction, or alteration/amendment can be done. She has stated in brief in her submission and written reply that, (l) The permission has been taken by the Gujarat Slum Clearance Board from SUDA for EWS/LIG for the plots of 25 sq. meters. (2) By getting allotment in false names and by giving allotment to false persons by the builder in collusion with the officers of Gujarat Slum clearance Board, and false construction. has been done. As per the terms and conditions of the allotment, by making allotment of one or more plots to the member of same family and by making violation of terms and, construction is made by making allotment to incorrect workers. Necessary supporting evidences have been submitted with her submission. The deposit in this regard deposit in same Bank in continuous numbers drafts.
On asking the Slum Clearance Board to submit the required details on 30/11/09 and on 16/12/09, and on taking the details produced in to the notice, as well as on taking the reply submitted by the Applicant into the notice, the entire facts appear as under:
(1) The Applicant Smt. Vasantiben D. Desai has filed S.C.A No.6444/2008 in the Hon'ble High Court of Gujarat and. as per the oral order Of the Hon'ble High Court dated 6/10/09, the inquiry is limited to the extent of allotment made in the Survey No. 185, Block No. 198 whose area is 0.52.61 sq meters as well as Survey No. 195, Block no.2O9 having area of 0/77.90 sq. meters.
(2) The land of Survey No.185 in question included in the Petition in question. dated 12/03/04 of Surat Urban Development Authority Board is with the land in question of the Slum Clearance Board, and its revised development permission is vide No. SUDA/VIPA/U.4/1274-
A/5801-A/2339, whereas, the revised development Page 37 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT permission of the land in which the Survey No.195 is included, is given on 28/4/05 vide No.SUDA/VIPA/U.4/5918-A/5801-A-B/2639.
(3) In the land in question. i.e .Survey No. 185, Block No.198 and, Survey No.195 Block No.209, total 117 plots of Slum Clearance Board are situated in which for auction of these plots with the other plots the advertisement was published by the Slum Clearance Board on 25/1003 in the local newspaper Gujarat Mitra and Gujarat Samachar.
(4) On perusal of the reply submitted by the Slum Clearance Cell the public auction of plots in question had. been done on 18/11/03 and 19/11/03.
(5) During the public auction in the land in question, 139 plot holders on 18/11/03 and 8 plot holders on 19/11/03 totalling of both days the plots were allotted to 47 plot holders.
(6) For total 70 plots out of total 117 plots in the land in question, small advertisement was issued on 26/11/03 by the Slum Clearance Board and it was informed to the people who had left to get the residential plots, to contact at the Board's office at Sachin-Kansada on 28/11/03 during 14:00-pm to 18:00 pm and on 28/11/03 during 10:0O-am to 16-00 pm with evidences on first come to first basis.
(7) As stated in the written reply given by Slum Clearance Cell, in pursuance of the advertisement the allotment of following plots has been done.
(A) 44 plots on 03/12/03, (B) 17 plots on 04/12/03 (C) 5 plots on 05./12/03 (D) 2 plots on 11/12/03 (E) 2 plots on 13/12/03 thus, total allotment was made to total 70 plot holders on different-different dates. The said procedure was done after conducting public auction on 18/11/03 and 19/11/03 after obtaining offers.
(8) The upset price per plot which has been decided for allotting the plots to the plot holder after conducing public auction and after receiving offers was fixed as Rs.600/per sq. meters for Part~1 and Rs.550/per sq. meters for Part-2 and Rs.500/per sq. meter for Part-3 as per the order given by the Secretary, Slum Clearance Page 38 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT Board on the note dated 8/10/03. For fixing the upset price which is decided by the Board, when the said land is situated in urban area at that time while fixing the said upset price, should be done by the scientific method, which is not done. As stated by the Officer on special duty of the Slum clearance Board vide his letter dated 13/12/09, for deciding the upset price of the plot, rate as per the Jantri of Board for the year 2003 as well as after taking the rates of the agreements made by SUDA were taken into the notice and accordingly, the upset price was fixed, for which it is stated that, no approval of the Board for the same is obtained.
(9) It was asked to make confirmation in regard the allotment made in Block No.198, and 209. The Officer on special duty of Slum Clearance Board has submitted by remaining present on the date of hearing on 16/12/09 that, the money in regard the land in question have been paid in cash and not by cheque. After making allotment by the Board, the allotments letters and maps of the plots allotted to the individual plot holders by the Slum Clearance and the building's plan as per lay out plan approved by SUDA have been given as per the terms. But, after giving of building plan, the information is not on the record of Slum Clearance Board as to when the persons to whom the allotment of plots have been made have commenced the construction, and in addition to details of the supervision on the construction of the building in addition to the date of commencement are on the record of Slum Clearance Board and, no supervision is done at the time of commencement of construction and during the construction also. It is stated that no any supervision has been done by Slum Clearance Board after selling of plots by Slum Clearance Board. Further, a list in the form of statement of total 117 succeeded beneficiaries who have paid money in the Board's account in Indian Bank, Sachin in cash. (Statement is annexed). The beneficiaries have been given copy of map approved by the Surat Urban Development Authority Board. The responsibility of doing the construction as per the approved maps in the plot as well as the responsibility of doing construction as per the I.S. Specification shall be of Architect/ Engineer/ Surveyor/ Structural Engineer of the Applicant. As per the Term No.19 of the allotment made, this responsibility is held of the Applicant. No intimation is given to SUDA from this Page 39 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT office in regard the applicants to whom the allotments have been done as well as to whom the allotments have been made.
(10) The responsibility of commencing the construction as per the map approved by SUDA shall be of the respective plot holder and the allotment has been granted subject to the said term. No any intimation has been given to SUDA from this office. But, the engineer of the respect plot holder shall require to give intimation to SUDA in prescribed form. He has also shown the details in the statement annexed as to when the plots have been given to 117 beneficiaries. At present, out of these plots, constructions have been done in 18 plots in the land in question whereas the said plots are open plots.
(11) After allotment of the plots, no any notice is given by the Slum Clearance Board for the construction made against the terms of the allotment. It is stated in the statement that, in pursuance of the advertisement, total 163 applications have been received.
(12) On asking on 16/12/09 to furnish further details for the matter of auction/allotment, further details have been stated vide their letter dated 31/12/09. As per the same, the allotment of' 47 plots out, of the block in question has been done on 18/11/03 and 19/11/03, whereas, by not making auction of the remaining 70 plots, on the basis of tiny advertisement calling offers published in Gujarat Mitra dated 26/11/03, the same has been made after receiving application on 28/11/03 and 29/11/03. The allotment of the plots which have been done by the Slum Clearance Cell in the same also, the applications for the allotment have been obtained in which the allotment of 70 plots has not been made by public auction. But, the same have been given after getting the application of the persons for higher price than the upset price.
(13) In the file received for the allotment of 117 plots by slum Clearance Board, allotment procedure was done prior to December 2003 and was done by obtaining applications as well, as by public auction. But! the revised development permission combined in the land in question has been obtained on 12-3-04 for the Survey No. 185, Block No.198 and the revised development permission is obtained on 28-4-05 for the Survey No.195, Page 40 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT Block No.209. Thus, the allotment of plots has been already made before getting revised permission from the Surat Urban Development Authority Board.
(14) The upset price has been fixed by Slum Clearance Board for giving the plots by way of auction/by application,the approval of which is not given by the Board. The same has been decided by the Secretary at his own.
(15) Smt. Vasantiben D. Desai the applicant of SCA No.64442008 was also called on 16/12/09. She has appeared and has given her written reply. It is stated in her written reply that, the land in question was acquired from her husband in the year 1986 under the law of Acquisition of Land Act. It has been submitted. that, thereafter, the disposal of the plots has been done by making incorrect allotment at different-different level from the year 2003-04. In that regard SCA No.13825/2005 was filed. earlier in the Hon'ble High Court to get this land back in which, the Hon'ble Court had issued instructions to the Collector, Surat on 11/07/05 to dispose of within 3 months after hearing in the matter of the application of the applicant. In that matter, it is stated vide letter No. LAQ/VASHI-OS dated 26/9/05 of the Collector office that, the land of Survey No.185, Block No.198, Survey No.195 Block No.209 of Kansad, Ta. Choryasi, Dist. Surat had been acquired. In that regard, the reply has been given vide letter No. GSB/102003/4736-TH (online-1)04 dated 1-3-04 of the Urban Development and Urban Housing Department. Further, Board has, after plotting of residential plots of 25 sq. meters for the poor people and financially backward people and the same have been disposed of as per the approval of the government. Thus, reply is given that, your land cannot be re-granted as per your demand. Further, vide letter dated 1-3-04 of the Urban Development Department also it has been informed to Smt. Vasantiben that, after plotting of this land of 25 sq. meters and since the same have been disposed off as per the approval of the Government and the Board has not sold the same to private contractor and therefore, her land cannot be given back. Thus, the earlier petition has been disposed, the details of which has been informed in their written reply.
Page 41 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT(16) Since they were not satisfied with the auction by the Slum Clearance Board /allotment as well as in the procedure done, they has again filed new petition No. S.C.A. No.6444/2008 in Hon'ble High Court in which, the Hon'ble High Court has passed oral order on 6/10/09. They have stated in their written submission in her application by giving examples that, in the allotment done of 117 plots in their land in question, several plots have been allotted to the persons of a same family as well as only one person. She has also made such written submission that, by making plots of 100 to 150 yards in place of 25 sq. meters and since the buildings in which construction have already been made, thereby by filing the cases, stay order has also been obtained so that, no any construction work, changes or alternations may not take in the land in question. She has stated in writing that, permission for 25 sq. meters was taken by the Slum Clearance Board for EWS/LIG against which, the officers of Slum Clearance Board in collusion with the builder, construction has been done by making allotment in the name of false persons. As per the terms for allotting plots, the undertaking has been taken from the respective applicants in which the affidavits have been made in which, such confessions have also been obtained that, they are not possession any plot or residence within limit of 8 km from Sachin-Kansad either in their names or in the names of their family. In the terms of allotments and in the instructions with the applications also, the signature of the applicant has been taken. But, as per the terms and condition of the allotment,the construction has been done by making allotment to the one or more members of same family. Further, the deposit in that regard also by way of drafts of same Bank and in the continuous number have been produced. Such details have been stated.
(17) On the entire above facts, the development permission has been obtained by the Slum Clearance Board at the different different stages. Further, since it was told by the Hon'ble Principal Secretary to submit report on 4/06/08 after making inquiry in this regard, the detailed report has been submitted in the Government also by the Surat Urban Development Authority Board vide confidential letter No. SUDA/PA/Confidential/42/08 dated 16/06/08.
Page 42 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT(18) In the said report also, the detailed report is sent in regard the construction taken place in different-different plots of Slum Clearance Board in which it is stated that, the secretary, Slum Clearance Board and the Executive Engineer of Slum Clearance Board is as the Architect/Engineer of the Board are as owner and as developer in the plan presented for the development permission. Therefore, their supervision is necessary In this regard the construction after making allotment. As stated in: their reply, no supervision has been at any level.
(19) After getting the plans approved from Surat Urban Development Authority Board, no details as to who have been allotted the plots in pursuance of the development permission have been furnished by the slum clearance at any stage till the completion of the constructions as to whom the plot has been allotted by the Board.
(20) On making representation before the Government, a detailed report has been submitted by the Technical Staff of SUDA in regard the planning as per the development permission given in regard the land of the Slum clearance Board and, the details of the construction done in that regard. He names address and details in regard the construction as well as the steps taken in stopping the unauthorized construction have not been provided at this stage from the Gujarat Slum Clearance Board.
(22) The Gujarat Slum clearance Board is an independent body of the State Government and at the time when the development permission is sought for by the Board as per the same when the development permission is being given to the Government organization at that time letter of allotment, in terms as well as the activity in regard carrying out the activity of construction against the development permission, the primary responsibility is of the organization by whom the allotment is made. Whereas, from the organization by which the allotment is made, no any report is made at any stage as to whom the plots have been allotted by the Slum Clearance Board till the year 2007 and, whether the construction is against the development permission or not and no inquiry is made. In that regard if the aforesaid land is acquired under the acquisition then, as its occupants and as the developer is the concerned organisation. They Page 43 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT have not performed their responsibility.
(23) The aforesaid place of the Slum Clearance Board is situated within the area of Surat Urban Development Authority Board and: development permission has been sought for from Surat Urban Development Authority Board. The State government has decided policy for the disposal of land and disposal of property for the various authority Board and Urban Development Authority/Area development authority, vide Resolution No.UDA-1189- 903-Part-2/V dated 17/09/02 of the Urban Development and Urban Housing Department. The Slum Clearance Board is an independent organization and, it is also having existence under the other law of the State Government. Under such circumstances, by taking the Land Disposal Policy dated 17/9/02 into the notice, the land disposal should be made by the Slum Clearance Board also, after taking all the points into the notice and after preparing its own land disposal policy. For this by taking base of land disposal policy of the State Government the Slum Clearance Board should make the disposal of land and property as per its own land disposal policy and its own law and as decided for the area of its own jurisdiction. In that regard, during the inquiry, no any proceedings appear to have been done by Slum Clearance Board before taking the policy decision By adopting the land disposal policy of the Government and after accepting the same as guidelines, the land disposal policy should be prepared.
(24) It. is stated that the Slum Clearance board. has published advertisement on 25/10/2003 in local newspapers Gujarat Mitra and, Gujarat Samachar for the public auction and, in pursuance of the advertisement, the 117 plots of the land in question along with the various plots have been put to public auction on 18/11/03 and 19/11/03. Before making public auction, no sufficient efforts have been made that the general public may be aware of the advertisement and, maximum people may take its advantage. Therefore, out of 117 plots of the land in question, allotment is done of only 47 on the day of auction. Whereas, for the remaining plots, by giving again a tiny advertisement on 26/11/03 and, it was decided to call for the applications 28/11/03 and 29/11/03 for allotments on first comes first basis. In that regard the time period is kept very less and, it has been Page 44 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT informed to make contact along with application on 28/11/03 and 29/11/03 along with basic evidences on first come first basis. In case any decision is taken in that regard, no any basic evidence in that regard has been produced.
(25) After receiving the application and for making its disposal and very short period is kept for conducting public auction. Therefore, it does not appear about carrying out the verification in regard the application of the person making application. But, by treating the evidences attached to the application of the Applicant as valid evidence, and thus the plot allotment has been made on by public auction/on the basis of the application. The affidavit and undertaking letters were also matched with the application. Thereafter, the same is done after making allotment first. Thus, the basic evidence and the checking about the eligibility of the applicant, affidavit, undertaking etc. have been taken after making allotment first. The verification of the appllcation of the Applicant is not made before making the allotment or before asking them to deposit their amount as per the offer.
(26) The Resolution No. 1165 to 1175 passed by the Urban Development and Urban Housing Department have been approved by the government in which it was held that since the Board is to be closed (wound up)instead of doing the construction activity, it has been held to dispose of these land after removing the encroachment on the said land and after giving vast publication of the public auction of all these land. But, the disposal of the plots in the land in question has not been disposed by giving wide publication of public auction. But, after receiving application, 70 plots out of 117 plots have been disposed off after receiving offers. Whereas, in 47 plots the proceedings of public auction is being seen in which also it does not appear that, wide publicity was done.
(27) In the advertisement dated 25/10/03 it has been stated that, the interested person shall have to obtain tender form of price of Rs.50/ during 6/11/03 to 15/11/09 and the shall require to be sent at the office of the Board at Sachin till 15-11-09 with 25% deposit of offer price in closed envelop. Further, it had been stated that, the Page 45 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT auction of the aforesaid vacant plot shall be made during 17/11/03 to 21/11/03. It is further stated that the auction of the aforesaid vacant plots shall be done during 17/11/03 to 21/11/03 at Sachin-Kansada site. But, no any reference is made in the application or in tender form as to in which plot and where the same are situated for which the part is to be taken in auction as well as no reference is made therein about the site map, and how much minimum price is fixed for the offer. But after calling application form from the applicant and the offers have been called in closed envelope. If the applicant does not have information in regard the minimum price, under such circumstances, there is negligible possibility of receiving the offers above some high side of the upset price.
(28) The plots which have not been disposed off during the auction, for such open plots also, tiny (small) advertisement has been given on 26/11/03 in Gujarat Mitra. But, in the same also no wide publicity is done. The allotments of all the plots and, the possession, have been done prior to obtaining the development permission from the SUDA and before approving the site plan of the plots. All the procedures have been done before obtaining the development permission.
(29) The basic evidences in regard the income in the applications have not been obtained from Taluka Panchayat, Mamlatdar office or from the authorised officer of the Government. But, the powers has been given to the private Firm/company which have been accepted. But, as per the Instruction No.23 in regard the allotment given to the applicant desiring to get the plot, since it has been stated in the term to submit the owner of the local business along with the application, the Same have been submitted accordingly. For the residential evidences, ration card, the voters' list or certificate of Talati-cum-mantri should be attached, but the same have not been attached.
(30) The approval has been given by the State Government to the resolution No.1165 to 1175 of the Board. But, in pursuance of Board's Resolution No.1166, it has been decided to make the disposal by public auction after wide publication. There does not appear in the record that, policy has been prepared by the Board in Page 46 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT regard the disposal. Whereas, since, the Government has fixed policy by passing resolution on 17/9/02 for disposal of land by the Urban/Area development authority, by treating the same as base, the policy should be fixed for the disposal of the plots, and, after making sufficient verification of the offers received during the public auction, if the disposal has been made under the sufficient knowledge of the general public then, the opportunity which the applicant is getting subsequently for the disposal of the plots, might not have been available to her.
Thus, the aforesaid facts are being sent on the basis of the record of the Slum Clearance Board, their reply and, on the basis of the submission of the applicant."
5. Submissions on behalf of the writ applicant:
5.1 Mr. S.N. Thakkar, the learned senior counsel appearing for the writ applicant vehemently submitted that the acquisition was originally made by the State Government for the purpose of enabling the Gujarat Slum Clearance Board to construct houses for the EWS/LIG. Later, the plan submitted by the Board and as approved was for the construction of houses by the Board on plots admeasuring 25 Sq. Yards/40 Sq. Yards respectively. For almost 17 years after the acquisition, no construction was put up and without placing any revised plan, the Gujarat Slum Clearance Board decided to sell the plots which, under the guise of selling to persons of the EWS/LIG came to be sold to the persons of higher strata/builders who have constructed bungalows and row houses and have also been sold to dummy persons/persons of the same family and on the amalgamated plots, huge bungalows have been constructed.
5.2 He further submitted that the inquiry report dated 29th Page 47 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT January, 2010 of the Collector, Surat (produced on record on 11.12.2018 before this Hon'ble Court) clearly exposes the fraud and various in the entire allotment process. The entire acquisition for a public purpose was a farce and a fraud has been played upon by the Gujarat Slum Clearance Board in connivance with the private builders/parties and in such circumstances, the land may be re-granted to the writ applicant, or in the alternative the said land be resumed by the Government after demolishing all the illegal structures. The entire acquisition is vitiated and therefore the consequential action of allotment and illegal construction thereon deserves to be set aside.
5.3 Mr. Thakkar, in support of his submissions, has placed reliance on the following decisions:
(I) Khetsinh Hirji Shah vs. State of Gujarat, reported in 2012 (3)GLR 2163,
(ii) Anilbhai Gajanand Vyas v/s State of Gujarat, reported in 2007 (1) GLH 206.
(iii) A Division Bench decision of this Court In the case of The Administrator vs. State of Gujarat & Ors., LPA No.182 of 2007; Order dated 30.01.2009 passed by the Supreme Court in the SLP (Civil) No.1134 of 2009 wherein the Supreme Court refused to interfere with the aforesaid decision of this Court.
(iv) In the case of Vyalikaval House Building Co. Op.
Society through its Secretary vs. V. Chandrapa & Ors., reported in 2007(9) SCC 304.
Page 48 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENTSubmissions on behalf of the SUDA :
6. Mr. H.S. Munshaw, the learned counsel appearing for the SUDA, in one line, submitted that the case on hand is one of a large scale fraud. He submitted that the construction in the form of posh bungalows and row houses on the land in question is absolutely illegal and unauthorized. He submitted that SUDA has made its stance clear in the affidavit-in-reply which is on record. He submitted that even before the Supreme Court, SUDA had made itself very clear that the case is one of a large scale fraud and the construction which has been put up is absolutely illegal and unauthorized. In such circumstances, he submitted that not only the persons responsible for the fraud should be dealt with severely but, at the same time, the offending structures put up on the land in question also deserve to be demolished. He submitted that none of the occupants of the bungalows and other properties standing on the land in question could be said to be the bona fide purchasers of the property for value without notice.
Submissions on behalf of the Gujarat Housing Board:
7. Mr. Bambhania, the learned counsel appearing for the Board very boldly and fairly submitted that the case is one of a large scale fraud. He has adopted all the submissions canvassed on behalf of the writ applicants as well as by the SUDA. Mr. Bambhania also, in one word, submitted that the construction deserves to be demolished.
8. Ms. Disha Nanavati, the learned counsel appearing for the respondents Nos.7,16 and 22 has filed her written Page 49 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT submissions. The submissions are as under:
"The Answering Respondents have yet not been impleaded as the party respondent in the proceedings. An application being Civil Application No 1 of 2018 was filed in the captioned writ petition seeking to implead the Respondent No. 5 to 24 as set out in the said Application. The notice on the said Civil Application was issued on 13/08/2018 making it returnable on 27/09/2018. The matter as listed on 25/10/2018 on which date no order appears to have been passed. The matter thereafter appeared on the Board of the Honourable Court on 30/11/2018. On the said date the Honourable Court recorded that the Opponents though served had not chosen to appear and contest the main writ petition and disposed of the Civil Application. It was however not brought to the notice of the Honourable Court that till the said date the Civil Application had not been allowed and the Answering Respondent had not been impleaded as Party Respondents. The Petitioners appear to have amended the cause title of the Writ Petition. The matter thereafter appeared for the 1st time on board on 11/12/2018 on which date the Answering Respondents appeared through advocate and requested for time for filing their reply. The Honourable Court has recorded "Arguments Concluded. CAV". Consequently on date on which this Honourable Court recorded "Arguments Concluded" was the 1st date for hearing of the writ petition pursuant to the disposal of the Civil Application for impleadment of the Answering Respondents. The process served upon the Answering Respondent was only in relation to the Civil Application and not the SCA. It is in these circumstances the Answering Respondent had prayed for a limited period of one week to submit their affidavit in reply in response to the writ petition.
The Answering Respondent has been permitted to submit written submissions albeit without placing on record any documents. The Answering Respondents are indeed obliged for the indulgence provided by the Honourable Court, however, it is most respectfully submitted that the Petitioner has not disclosed material facts both in relation to (1) the main writ petition and (2) the civil application of impleadment. The inability to produce the documents would seriously impinge upon the rights of the persons Page 50 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT interested and affected by the relief prayed for in the subject writ petition as well as deprive this Honourable Court of the assistance with the true and correct facts in relation to the subject matter of the Petition.
The Answering Respondents therefore submit that the Honourable Court may direct the parties to the proceedings to provide a complete record of the proceedings to the Answering Respondent and to permit the Answering Respondent to file an affidavit in reply in response to the same and to hear the Answering Respondent and thereafter decide the Writ Petition.
Without prejudice to the above and expressly reserving our right to file a detailed affidavit in reply if the Court so permits as prayed for hereinabove, and with the limited information and record obtained by the Answering Respondents, the Answering Respondents are filing these written submissions Petition and Civil Application are premised on incomplete and incorrect factual Information regarding the owners and occupants of the premises in reference:
The Civil Application proceeds on the premise that the Answering Respondents are in occupation of the premises in question. In fact it is a matter of public record and knowledge that the following premises have been conveyed by their respective owners and the persons who are the owners and occupants of the said premises are not parties either in the Civil Application or in the Special Civil Application. The details of the same are set out herein below for ready reference:
Resp. 16 470 13291 01/07/07 Hiren
Vithalbhai
Patel
Respondent Table No. Deed No. Date Name
No.
Resp. 7 487 13295 01/07/07 Kaushikbhai
Keshavbhai
Savaliya
Resp. 22 485 13322 01/07/07 Maheshbhai
Vinubhai
Kotadiya
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C/SCA/6444/2008 CAV JUDGMENT
The Petitioner has not placed the above facts before this Honourable Court and thereby suppressed material facts regarding the name of the persons who would be actually affected by the relief prayed for in the subject proceedings.
False Assertions regarding the nature of the Development The facts that emerge are that the allotment was in fact made to the Gujarat Slum Board; there was an auction held after due public notice. The Answering Respondents successfully secured these very small plots in the auction pursuant to which the sale deeds were executed. In terms of the allotment made, the developed property was conveyable and in exercise of such right has been conveyed. False Assertions have been made that the development is in the nature of luxurious bungalows or row houses. The only change/deviation is that since it was found that the approved plan comprising a ground floor structure was very difficult to manage in and hence, as a matter of convenience, neighbouring plot owners notionally amalgamated the unit of one family on the ground floor and one family on the first floor. There is nothing in the nature of luxurious bungalows or row houses as alleged. The total available area for use remains the same. The photographs would make this fact evident.
Development is capable of Regularization and proceedings are pending which fact has been suppressed by the Petitioner The Gujarat Regularization of Unauthorized Development Act, 2011 provides a statutory procedure for regularization. The private respondents availed and submitted their applications on 19.02.2013 and the applications are under consideration. Although no final approval has yet been issued, technical approval has been granted by SUDA on 14.02.2014 and further procedure is said to be undertaken after NOC from the Gujarat Slum Clearance Board. Technical approval means that structurally and from a town planning stand point there is no impediment as such.Page 52 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
Relief Prayed for would interfere with the exercise of Discretionary Power of a Statutory Authority.
Having regard to Section 36(1)(2) of the Gujarat Town Planning Act, the language used prior to ordering demolition is clearly discretionary in nature. In the circumstances, having regard to the ratio in Muni Suvrat Swami Jain, (2006) 8 SCC 590, it is not open to pray for a mandatory direction to the Municipal Commissioner to demolish when the statute confers a discretion on the Municipal Commissioner, the judgment in Muni Survat- Swami Jain follows a long line of cases beginning with the Corporation of Calcutta judgment of the Supreme Court reported in AIR 1956 SC 160. Thus, the prayers for demolition are clearly misconceived.
Petitioners are lacking in Locus Standi The petitioners claim to be the legal heirs of the Land Owners whose lands are said to have been acquired. if the Petitioners are seeking any relief in relation to the acquisition of land, their remedy would lie in seeking reliefs as may be available under the provisions of the Land Acquisition Act. However having not raised such proceedings under the Act and provisions which affected their ownership of the land, the petitioner cannot seek such relief in the present proceedings. It is well settled that what cannot be done directly cannot be done indirectly. The petitioners have questioned the acquisition proceedings nor sought any relief under the provisions of the said Act. The said Act being a complete code in relation to the rights of the persons who are affected by the same, the writ applicant cannot seek relief in the proceedings under Article 226 of the Constitution of India.
The answering respondents rely upon the judgments recorded by the Apex Court, citations of which are hereunder:
(a) 2003(1) SCC 335
(b) 1997 (2) SCC 627."
9. The written submissions of the private respondents also Page 53 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT state that certain properties belonging to respondent no.6, 7 and 22 have been further conveyed vide sale deed dated 01.07.2007 to other individuals. Be that as it may, the fact remains that the answering respondents have not disputed that they had challenged the order dated 06.10.2009 passed by this Court before the Supreme Court despite the property having been sold on 01.07.2007. In any case, this court does not propose to undertake any fishing inquiry as to who is the owner etc., when the Court is seized of the larger issue regarding the illegal allotment and connivance of the officials of the Gujarat Slum Clearance Board in the matter of allotment of plots which were supposed to be allotted to person of the Economically weaker section/Lower Income Group.
10. The record as produced by the SUDA as well as by the writ applicant in the Civil Application for joining party being CA No.1 of 2018 in the present petition reveals the following startling facts namely:-
(a) That there was an interim order dated 22.04.2008 passed by a Division Bench of this Court granting ad-interim-relief in terms of para 11(D) of the petition which reads as under:-
"11. (D) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents herein to ensure that no activities of construction, transfer, alienation or the like are carried out in respect of the land bearing Revenue Survey No.185, block No.198 admeasuring 0-52-61 sq. meters and land bearing Survey No.195, block No.209 of Village: Kansad, admeasuring 0-77-90 sq. meters or in respect of superstructures thereon"
(b) Thus, with effect from the said date it was the responsibility of the respondents herein namely the State of Page 54 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT Gujarat (The Urban Housing and Urban Development Department), the Collector Surat, the Gujarat Slum Clearance Board and the respondent No.4 i.e. the SUDA to ensure that no activities of construction, transfer, alienation or the like are carried out in respect of the land bearing Survey No.185, Block No.198 admeasuring 0-52-61 sq. meters and land bearing Survey No.195, Block No.209 of Village: Kansad, admeasuring 0-77-90 sq. meters or in respect of superstructure thereon. Hence, any subsequent transfers in breach of the injunction order granted by this Court on 22.04.2008 was per-se not permissible and therefore the purported purchasers are not entitled to claim any equity in respect of the purchase of the said plots or premises the allotment whereof since inception has been found to be fraudulent by the Collector, Surat in her report dated 25.01.2010.
(c ) Further, even if there are any purchases made subsequent to the said order, the beneficiaries thereof would have no locus to claim any equity and thereby delay the hearing when after a detailed inquiry conducted by the Collector, Surat pursuant to order dated 06.10.2009 of this Court, the Collector, Surat has in her report dated 25.01.2010 stated as under:-
"In regard to the allotment/disposal of the plots, no approval of the Board has been obtained for fixation of the upset price.
That as per the owner's version the allotment has been made in false names for giving the same to builders in collusion with the officers of the Gujarat Slum Clearance Board and necessary evidences have been submitted to show that the deposit at the time of allotment has been in the same Bank in continuous numbered drafts.Page 55 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
The allotment of plot was made BEFORE getting the revised development permission from SUDA.
The upset price has been fixed by the Secretary of the Gujarat Slum Clearance Board without obtaining the approval of the Board.
No supervision at any level in respect of the construction made after allotment, has been carried out.
No inquiry report has been submitted by Gujarat Slum Clearance Board in respect of the allotments made and the Board has not performed its responsibility.
As per the land disposal policy dated 17.09.2002 of the State Government, the Gujarat Slum Clearance Board should frame its own policy as per the guideline of the Government which has not been done in the present case.
Before proceeding with the public auction no sufficient efforts have been made for making the general public aware of the advertisement so that maximum people may take the advantage; had out of 117 plots, allotment of only 47 plots is done on the date of auction whereas for remaining plots, only tiny advertisement (Tachukadi Jaherat) was published on 26.11.2003 for allotments to be made on first come first basis and the time period kept was very less.
That no verification appears to have been carried out in respect of the status of the applicant and only upon receipt of documents with the application, the allotment has been made and the checking about the applicant, his affidavit, undertaking etc. has been done after the allotment being made whereas the inquiry for eligibility has to be made before the deposit and before allotment.
Further for the auction carried out during 17.11.2003 to 21.11.2003 at Sachin-Kansad site, there is no reference to the plot numbers or about the site map or the base minimum price. If the applicant does not have information of the location or minimum price, there is no possibility of receiving the offers above any upset price.Page 56 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT
The basic evidences in regard to the income have not been obtained from the Taluka Panchayat, Mamlatdar Office or for the authorize officers of the Government but the certificates of private firms/Company have been accepted by the Board.
For residential evidences, the Ration Card, the Voters list or certificate of Talati Cum Mantri should be attached but the same has not been attached."
11. Thus, there remains no scope or any room for any doubt that as per the inquiry report of the Collector, Surat there were gross irregularities since the inception at the behest of the Gujarat Slum Clearance Board in seeking to auction the land in question and also in the matter of allotments of the land which was originally acquired from the writ applicant for the purposes of the construction of the units for the persons of EWS/LIG. The same is nothing but a fraud committed by the authority on the powers vested in them and cannot be countenanced by this Court.
12. An additional fact which cannot be lost sight of is that the SUDA in its further affidavit dated 04.07.2016 has itself stated that the constructions made on the plots of the land in question is not in accordance with the development permission granted to the Slum Clearance Board and that on many plots Bungalows have come up by merger of the plots admeasuring 25 meters each and that the entire construction is illegal and not in accordance with the development permission dated 12.03.2004 granted to the Slum Clearance Board and therefore appropriate orders be passed in the interest of justice.
13. Therefore, the contention of the private respondent nos 7, 16 and 22 to the effect that they are bona-fide purchasers of Page 57 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT property or of the new purchasers (who have filed MCA No.1 of 2018 for recall of the order dated 11.12.2018) does not warrant any consideration since this Court is not expected to hear every purchaser who has purchased the property in breach of the injunctive reliefs granted by this Court vide order dated 22.04.2008 which is continuing till date. It is a well settled legal proposition that once the hearing of the matter is concluded and the matter is reserved for judgement, the said proceedings cannot be re-opened since nothing is left to be done except pronouncing of the judgement. In any case, in the facts of the present case when the Court is primarily concerned with examining the act of the Gujarat Slum Clearance Board of fraudulently allotting the plots in a deceptive manner contrary to the avowed purpose for which the lands were acquired, the question of hearing the subsequent purchasers of the plots who claim to have purchased the plots from the original allottees clearly does not arise. The said MCA 1 of 2018 filed by the purchasers seeking recall of the order dated 11.12.2018 and for hearing the said applicants after the matter having been finally heard and being kept reserved for orders, is accordingly rejected.
14. The submission regarding the private respondents being successful bidders at the auction is of no consequence since the then Collector viz. Kum. S. Aparna has in her report dated 29.10.2010 enlisted the various irregularities of the Slum Clearance Board in the allotments of plots. The denial of the allegations of luxurious bungalows or Row houses being constructed on the lands in question, runs counter to the material and photographs as produced by the SUDA showing huge structures constructed on the plots and which certainly Page 58 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT cannot be said to be an allotment of plots to the persons belonging to the EWS/LIG.
15. A Division Bench of this High Court, to which I am a party, in the case of Khetshi Hirji Shah vs. State of Gujarat, reported in 2012 (3) GLR 2164, has observed as under:
"55. We are unable to express the plight and the heart burning which those poor farmers and agriculturists must have experienced and are experiencing as on today when they must be seeing bungalows and residential complexes being constructed on their land which was supposed to be used for rehabilitation of the people who lost their houses at the time of devastating earthquake. The photographs which are on record clearly indicate that apart from temples, 'ashramshalas', 'dharamshalas' and other structures, there are bungalows as well as flats being constructed on the land in question. The question is who constructed these bungalows as well as residential complexes and how they came to be ultimately sold in favour of other parties. If there has been no outright sale as per the case of the Panchayat, then what would be the status of such people living in these bungalows and flats.
56. We are of the firm view that the land should have been and even as on today can be used for any other genuine public purpose which may include housing for the most lower strata of the society, but in any case, not temples, bungalows, flats, residential complexes, etc.
57. We are hurt by the very fact as revealed from the affidavit-in-reply by the private respondents that they have spent lacs and crores of rupees in construction. If such institutions could afford to raise lacs of rupees then why should such institutions be allotted land free of cost for the purpose of temples, etc. In this country, first priority should be to provide shelter to millions of homeless people and not temples.
58. No consideration should be shown to any person where construction is unauthorized. This dicta is now almost bordering the rule of law. During the course of hearing, stress was laid by the respondents to exercise Page 59 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT judicial discretion in moulding the relief inasmuch as asking the Government to regularize such allotments and constructions. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorized construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. As observed by the Supreme Court in the case of M.I.Builders Private Limited v/s. Radhey Shyam Sahu and others, reported in (1999)6 SCC 464, Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As a matter of fact, the State Government ought to have acted very promptly and should not have allowed to perpetuate such illegality to this level. In any case, now atleast having realized, we expect the authorities of the State Government to promptly get into action and see to it that immediately action is taken for demolition of such illegal constructions, if not demolished by the individuals or institutions within a prescribed period of time as may be directed by this Court."
16. In view of the aforesaid, I propose to pass the following directions:
(i) A Special Investigation Team, consisting of '(1) Secretary, Revenue Department, State of Gujarat, Gandhinagar; (2) Secretary, Town Planning and Urban Development Authority, State of Gujarat, Gandhinagar (3) Collector, Surat; (4) Commissioner of Police, Surat and (5) An officer of the rank of Superintendent of Police from the State CID Crime, State of Gujarat needs to be constituted to probe into the matter. I order the constitution of such Special Investigation Team accordingly.
(ii) The Special Investigation Team shall look into the Page 60 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT following aspects;
(a) The legality and validity of the auction proceedings conducted by the Gujarat Slum Clearance Board;
(b) The various illegalities and irregularities alleged to have been committed by the Board in auctioning the plots;
(c) The persons involved in the alleged fraud;
(d) The issue of the payments made from the same account for the benefits of the purported allottees and whether the said allottees were genuinely belonging to the EWS/LIG category and qualified for the allotment of the plots in question or there were dummy names put forward by others for securing the allotment in an illegal manner;
(e) The Special Investigation Team shall also examine as to how the construction was permitted by merger of the plots in breach of the terms and conditions of allotment and the persons responsible for granting such permission;
(f) Whether any criminal offence is made out in the alleged fraud or not?;
(g) Whether the occupants of the bungalows and other houses standing on the land in question are paying the property tax and other taxes to the Municipal Corporation or any other authority and, if yes, in what capacity such tax is being accepted by the Surat Municipal Corporation or any other authority.
17. It shall be open for the Special Investigation Team to hear Page 61 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019 C/SCA/6444/2008 CAV JUDGMENT the occupants of the bungalows and row houses standing as on date on the land in question. The Special Investigation Team shall call upon the individual occupant of the bungalow or any other house to show whether any prior permission was obtained for the purpose of construction or whether any plans were sanctioned by the competent authority before putting up the construction.
18. The Special Investigation Team shall prepare an exhaustive report in this regard and place it before this Court within four months from the date of the receipt of this order.
19. Further order shall be passed as regards the demolition of the construction as well as institution of the criminal prosecution against the responsible persons after the receipt of the report of the Special Investigation Team.
20. The Registry is directed to forward one copy of this judgment to each of the members of the Special Investigation Team as constituted by this Court. The issue whether the land in question should be restored in favour of the writ applicants shall be looked into by this Court after the receipt of the report of the Special Investigation Team.
21. Notify the matter next on 20th December, 2019 before this Court, i.e. J.B. Pardiwala, J. alongwith the report of the Special Investigation Team.
(J. B. PARDIWALA, J) Vahid Page 62 of 62 Downloaded on : Thu Aug 22 01:43:29 IST 2019