Gujarat High Court
Deepakkumar Shambubhai Doctor vs State Of Gujarat on 16 December, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/15207/2021 ORDER DATED: 16/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15207 of 2021
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DEEPAKKUMAR SHAMBUBHAI DOCTOR
Versus
STATE OF GUJARAT
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Appearance:
BHOOMI M THAKORE(6237) for the Petitioner(s) No. 1
MR. HARSH K THAKAR(7172) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MS. JYOTI BHATT, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 16/12/2022
ORAL ORDER
1. By way of filing the present petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
(a) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, directing the respondent to have over the vacant and peaceful possession of final plot number 385 of town planning scheme no.6 bearing city survey no. 1579/10 admeasuring 862.square meters of ward Khatodara, Surat to the petitioner herein;
(b) pending the admission, hearing and final disposal of thei petition, YOUR LORDSHIPS be pleased to direct the respondent to maintain status quo qua the land in question;
(c) any other and further relief deemed just and proper be granted in the interest of justice;Page 1 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022
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2. The brief facts giving rise to the present petition are as under:
2.1 The petitioner is the owner of the survey No. 262, Final Plot No. 385 in T.P. Scheme No.6 (Majura- Khatodara). It is contended that in the year 1978-79, the respondent published Draft Development Scheme whereupon the Town Planning Officer vide its letter dated 15.10.1979 forwarded the preliminary scheme plan, showing the proposed Town Planning and Final Plots allotted to the petitioner and for getting further sanction of the State Government. That the land bearing Survey No. 262 (original survey no) being of occupation and ownership of the petitioner was brought within the area of proposed Town Planning Scheme by respondent authorities and after considering the objections and suggestions received by the area development authority, it has submitted the said Draft Town Planning Scheme to the State Government for sanction under Section 48 of the Gujarat Town Planning and Urban Development Act, 1979 Act and the Rules made therein.
2.2 That the State Government in exercise of power under Section 48 of the Act, sanctioned the said Town Planning Scheme No.6 (Majura-Khatodara) vide Notification dated 27.10.1980. That as per the sanctioned Draft Town Planning Scheme, Original Survey No. 262 owned by the petitioner and other occupiers was admeasuring 9525 sq. Page 2 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 mtrs against which it was proposed to allot Final Plot No. 385 admeasuring 8136 sq. mtrs. That after sanction of the Draft Town Planning Scheme, the State Government appointed Town Planning Officer for finalisation of the Draft Town Planning Scheme in exercise of its powers under Section 50(1) of the Act.
2.3 That the Town Planning Officer issued communication dated 2.7.1982 giving details of compensation to be awarded to the owner and occupier for part of property being affected under the Scheme. That thereafter, property tax has been collected in the name of the petitioner and other occupiers and the same has been regularly paid by the petitioner under the bonafide impression that the said plot is lying vacant under his name and his name is reflected in the property card. According to the petitioner, as he was having financial hardship due to Corona, he visited the land in question and to the utter shock of the petitioner, the respondent authorities have parked their vehicles illegally on the plot in question and also placed a security guard who has stated that the land is in possession of the respondent Corporation. The petitioner has contended that he has made several oral requests for allotment of peaceful and vacant possession of the final plot before respondent authority, however he did not get any response and, therefore, has preferred this petition for the aforesaid relief.Page 3 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022
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3. The affidavit-in-reply came to be filed on behalf of respondent No.2 Corporation by one Mr. Sujalkumar D. Prajapati, Executive Engineer, South Zone (Udhna) (A), Surat Municipal Corporation, Surat at page-26. While endorsing the contention of Draft Scheme and the allotment of Final Plot, as contended by the petitioner, it is submitted that a piece of land bearing original Plot No. 262 admeasuring 9525 sq. mtrs was allotted as Final Plot No. 385 admeasuring 8136 sq. mtrs. It is contended that from the Re-distribution and Valuation Statement Form-F, it would be clear that the rights of owners in Final Plot are as per their share in the original plot and it is an internal matter of the original owners and their heirs. It is contended that a piece of land bearing Final Plot NO. 386 (open space) admeasuring 969 sq. mtrs is reserved for Surat Municipal Corporation. It is contended by respondent No.2 that it has not encroached upon any part or portion of land bearing Final Plot No. 386 adjacent to Final Plot No. 385. It has also contended that the respondent No.2 has nothing to do with the internal matter of the family members/ owners of the land as mentioned in Form F and it has nothing to do with any internal problem of the petitioner with co-owners of family members, etc. According to respondent No.2, the petitioner is suppose to deal with the same and resolve the same independently without dragging Surat Municipal Corporation into such controversy. It is also contended that even Notices were Page 4 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 issued on 26.11.1987 for removal of encroachment as part of the land of Final Plot No. 385 was encroached upon and the same was required to be removed and kept open for 40 feet wide Town Planning Scheme road as well as plots reserved for Surat Municipal Corporation.
3.1 It is also contended that the present petition is preferred after more than 42 years of sanction of Preliminary Town Planning Scheme No.6 (Majura-Khatodara) and its implementation thereafter is thoroughly without any substance. It is also contended that none of the original owners/ co-owners/ family members have ever raised any dispute.
3.2 Thereafter, by way of further affidavit-in-reply the respondent No.2 has filed further affidavit on 13.4.2022, stating that a piece of land bearing Final Plot No. 385 (Open space) admeasuring 969 sq. mtrs of T.P. Scheme No.6 (Majura-Khatodara) is reserved for Surat Municipal Corporation as open space and it is in its possession, as preliminary Preliminary Town Planning Scheme No.6 since 27.10.1980. It is also contended that so far as Final Plot No. 385 of T.P. Scheme No.6 (Majura-Khatodara) is concerned, Surat Municipal Corporation is neither in possession thereof nor using the same for any purpose including public purpose and therefore, the averments and allegations made by the petitioner are contrary to the record. It is Page 5 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 prayed by the respondent No.2 to dismiss the petition.
4. Heard Ms. Bhoomi Thakore, learned advocate for the petitioner, Ms. Jyoti Bhatt, learned AGP for the respondent State and Mr. H.S. Munshaw, learned advocate for the Corporation at length. Perused the material placed on record and the decisions cited at bar.
5. Ms. Bhoomi Thakore, learned advocate for the petitioner has vehemently submitted the same facts which are narrated in the petition and has submitted that the plot in question was allotted as Final Plot to the petitioner as per Town Planning Scheme. While referring to the affidavit of the respondent, she has contended that the respondent has not disputed the factum of measurement of the Final Plot and allotment to the petitioner. She has submitted that however, the respondent has referred to the open space of Final Plot No. 386 at place and in another affidavit it refers to open space in Final Plot No. 385. She has submitted that it is for the Corporation to give vacant and peaceful possession to the petitioner as Final Plot was allotted to the petitioner. She has contended that considering the stand of the respondent Corporation, it is crystal clear that the possession of the Final Plot No. 385 has not been given to the petitioner in past and, therefore, in view of the decision of this Court in a similarly situated matter in Special Civil Application No. 9757/2008 in the Page 6 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 case of Govindbhai Popatbhai & 4 v. Ahmedabad Municipal Corporation & 1, similar order may be passed directing the respondent to hand over the vacant and peaceful possession of the Final Plot.
6. Ms. Jyoti Bhatt, learned AGP has submitted that there is no dispute as to the sanction of the final Town Planning Scheme and thereafter Final Plot was made during almost 41 years. She has submitted that in additional affidagvit at Page-66, there is typographical mistake in mentioning the Final Plot, she has contended that the State Government has nothing to do with as it has already sanctioned the Scheme and it is for the Corporation to do needful in the matter. Learned AGP has relied upon the decision reported in AIR 1972 SC 793.
7. Mr. H.S. Munshaw, learned advocate for the Surat Municipal Corporation has vehemently submitted that the Corporation has not made any encroachment upon the land of Final Plot No. 385 and the Corporation is in the possession of open space of Final Plot No. 386 only. He has submitted that the Corporation is in possession of Final Plot No. 386. He has submitted that there is some dispute betwen family members of the petitioner and regarding the possession of Final Plot No. 385 and for that the Corporation has nothing to do. He has relied upon the communication received from the Corporation dated Page 7 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 17.6.2022 for his submission and the same is taken on record. While referring to the contention referred to in affidavit-in-reply and further affidavit of the Corporation, learned advocate Mr. Munshaw has prayed to dismiss the petition.
8. Having considered the submissions made on behalf of both the sides coupled with the material placed on record and the decision cited at bar, it reveals that there is no dispute as to the implementation of the Town Planning Scheme No. 6 (Majura- Khatodara) between the parties. It is also admitted fact that the original land Survey No. 262 was of the ownership of the petitioner and against that Plot, Final Plot No. 385 came to be allotted to him. It also appears that there is no dispute regarding the measurement of the original plot and the Final Plot. Now, as per the stand of the respondent No.2, they are in occupation of open space of Plot No. 386 however, affidavit filed by the respondent No.2, it appears at some place it has referred to as Plot No. 385 open space being in its possession and at another place, it has referred Plot No. 386 . Now, there is no evidence placed on record by the respondent authority that final plot No. 385 was ever handed over to the petitioner by drawing any proper panchnama and reliance upon the issuance of notice by removing the encroachment, which are placed on record along with affidavit-in-reply, it appears that it pertains to Plot No. 385 and 386. However, Page 8 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 no documentary evidence showing the handing over the land of Final Plot No. 385 to the petitioner is produced by the respondent. At this juncture, it is worthwhile to refer to the decision of the Coordinate Bench in the case of Govindbhai Popatbhai & 4 v. Ahmedabad Municipal Corporation & 1 (Supra), dated 12.1.2010 wherein while referring to the earlier decision, this Court has observed in Paras-7, 8 as under and has ultimately passed the final order in Para-9 to the following effect:
"7. It is not in dispute that the petitioners were owners of land bearing Survey No.442/1, which was subjected to Town Planning Scheme No.2 (Odhav), which has become final in the year 1993. Under the Town Planning Scheme, which has become final, the petitioners are allotted Final Plot No.29 admeasuring 26052 sq.metres and original land bearing Survey No.442/1, which was given Original Plot No.22 has become part and parcel of Final Plot No.34 and the said Final Plot No.34 is reserved for public purpose, namely, for Neighbourhood Center and Civic Center. It appears that some portion of Final Plot No.29, which has been allotted to the petitioners under the Town Planning Scheme is not vacant land but occupied by one Mahavirbaug Cooperative Housing Society Limited. It appears that in view of the above, the petitioners are not handed over peaceful and vacant possession of the land, which is allotted to them under the finalised Town Planning Scheme. Thus, to the aforesaid extent, concerned respondent has failed to implement the Town Planning Scheme though the Town Planning Scheme has become final in the year 1993. In the case of Municipal Corporation of Greater Bombay v. The Advance Builders (India) Pvt. Ltd. reported in AIR 1972 HC Page 9 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 793, in para-12, this Court has observed as under :
"12. It is clear, therefore, on a consideration of the provisions of the Bombay Town Planning Act,1954 and especially the sections of that Act referred to above, that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. It has been long held that, where a statute imposes a duty the performance or non- performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done."
Thus, it is duty of the Corporation to hand over peaceful and vacant possession of the plot to the original land owner.
8. Similar question came to be considered by learned Single Judge in the case of Mathurdas Mangaldas since deceased through his heirs V/s. Ahmedabad Municipal Corporation passed in Special Civil Application No.4004/1984 where original land owners were not handed over the possession of final plot which was allotted under the Finalised Town Planning Scheme as there were unauthorized occupants in the said land. Learned Single Judge directed the respondents inclusive of Ahmedabad Municipal Corporation to pay compensation to the petitioners for the land, which was allotted to the land owners under the finalised Town Planning Scheme by determining the Compensation on the basis of market value of the land of the year 1993. The order passed by learned Single Judge has been Page 10 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 confirmed by Division Bench by order dated 13/2/1993 and also further came to be confirmed by Hon'ble Supreme Court in Civil Appeal No.2373 of 2001.
9. In view of the above and for the reasons stated hereinabove, the petition succeeds. Respondents are directed to hand over peaceful and vacant possession of Final Plot No.29 to the petitioners i.e. original land owners within a period of six months from today and to implement the Town Planning Scheme No.2 (Odhav), which has become final. In case, the respondents fail to hand over the peaceful and vacant possession of Final Plot No.29 to the petitioners within stipulated time as stated hereinabove, respondents are directed to pay compensation to the petitioners
- original land owners for the land admeasuring 26052 sq.mtrs. in lieu of the land bearing Final Plot No.29 in Town Planning Scheme No.2 (Odhav) by determining the compensation and on the basis of the market value of the land as of now and to pay the same to the petitioners with interest at the rate of 9% per annum w.e.f. 16/01/2010 till the date of actual payment. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs."
9. At this juncture, it is also worthwhile to refer to the decision in the case of Municipal Corporation of Greater Bombay v. The Advance Builders (India) Pvt. Ltd. reported in AIR 1972 SC 793, in paras-10 & 12, it has been observed by the Apex Court, as under :
"On a consideration of the provisions of the Bombay Town Planning Act,1954 and especially the sections 53 to 55 of that Act it is clear that the Corporation is exclusively entrusted with Page 11 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act. The responsibility for removing huts, sheds, stables and other temporary structures which contravene the scheme is that of the Corporation and not of the owners of the plots." (Paras 12,10)
10. Now, it is an admitted fact that the present petitioner was the owner of the land bearing Survey No. 262, which was subject to Town Planning Scheme No. 6 (Majura-Khatodara) Surat, which has become final in the year 1980. It is an admitted fact that under the said T.P. Scheme, which has become final, the petitioner was allotted Final Plot No. 385 admeasuring 8136 sq. mtrs. It also appears from the record that the said PLot was having some encroachment in the past and the Corporation had issued Notice for vacating the same to various persons. It appears that the petitioner was not handed over peaceful vacant possession of land which is allotted to him. under final Town Planning Scheme. Thus, to this extent, the respondent has failed to implement the Town Planning Scheme though the Town Planning Scheme has become final in 1980. Therefore, in view of the decision referred to hereinabove, the petition deserves to be allowed.
11. In view of the above, the petition succeeds. The Page 12 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022 C/SCA/15207/2021 ORDER DATED: 16/12/2022 respondents are directed to hand over the peaceful and vacant possession of the Final Plot No. 385 to the petitioner i.e. the original land owner within a period of 6 months from today and to implement the Town Planning Scheme No. 6 (Majura- Khatodara) which has become final. In case the respondents fail to hand over the peaceful and vacant possession of the Final Plot No. 385 to the petitioner within stipulated time, as stated hereinabove, the respondents are directed to pay compensation to the petitioner- original land owner for the land admeasuring 8136 sq. mtrs in lieu of the land bearing Survey No. 262 in Town Planning Scheme No. 6 (Majura- Khatodara) by determining the compensation on the basis of the market value of the land as on date of filing of the petition and to pay the same to the petitioner with interest at the rate of 9% per annum with effect from 1.6.2023 till the date of actual payment.
In the facts and circumstances of the case, there shall be no order as to costs. Direct Service is permitted.
(DR. A. P. THAKER, J) SAJ GEORGE Page 13 of 13 Downloaded on : Sat Dec 24 03:42:03 IST 2022