Gujarat High Court
Fenil Rajesh Soparivala S/O Rajesh R ... vs Gujarat Industrial Development ... on 17 October, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5592 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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FENIL RAJESH SOPARIVALA S/O RAJESH R SOPARIWALA
Versus
GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (GIDC)
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Appearance:
MR RITESH D PATADIA(6460) for the Petitioner(s) No. 1,2,3
MR PAVAN S GODIAWALA(2936) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 17/10/2022
ORAL JUDGMENT
1 By way of this petition under Article 226 of the Constitution of India, the petitioner has Page 1 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 challenged the action of the respondent authority whereby the petitioner's applications dated 21.12.2016 and 20.2.2017 came to be rejected by the respondent authority vide orders dated 24.1.2018 and 12.3.2018. Further, the petitioner has also challenged circular of 2016 issued by respondent to the extent that it does not give any right to the successor which according to the petitioner is in violation of its own circular of 2014.
2 The matter was heard extensively on various dates and ultimately on 29.9.2022 the matter was heard finally by this Court.
3 Heard Mr.R.D.Patadia, learned advocate for the petitioner and Mr.Pavan Godiawala, learned advocate for the respondent - Gujarat Industrial Development Corporation (for short, `the Corporation').
4 Today, by the consent of learned advocates for the parties, the matter is taken up for final Page 2 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 hearing. Hence, Rule. Learned advocate Mr.Pavan Godiawala, waives service of notice of rule for the respondent - Corporation.
5 Brief facts of the petition are that the petitioners are legal heirs of late Mr.Rajesh Rameshchandra Soparivala. The petition is filed by son of late Mr.Rajesh Rameshchandra Soparivala i.e. petitioner No.1 - Fenil Rejesh Soparivala in his personal capacity and by Nayanaben Soparivala and Jeniben Soparivala, who are wife and daughter of Mr.Rajesh Soparivala, respectively through their power of attorney holder Fenil Soparivala, who happens to be the son of Mr. Rajesh Soparivala. 5.1 That late Mr.Rajesh Soparivala was allotted a shed being Shed No.4304/4 of C-1 Type in GIDC Industrial Estate, Sachin on 9.2.1989 and father of the petitioner started carrying on his business in the name and style of Sai Textiles.
5.2 As father of the petitioner could not pay Page 3 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 the dues of respondent Corporation vide order dated 27.2.1997 the father of the petitioner was evicted from the premise on account of nonpayment of dues. 5.3 It is the case of the petitioner that his deceased father incurred huge losses on account of ill-health and communal riots during that period, and therefore, ultimately the possession of the plot was taken over and thereafter father of the petitioner passed away on 28.1.1999.
5.4 In the year 2016 i.e. after 19 years, after evicting father of the petitioner from the property by the respondent corporation, the petitioner came to know that vide circular dated 28.1.2016 (referred to as notification in the petition), the respondent Corporation floated a policy for restoration of the possession and as per that policy any property was evicted and possession of which is taken over by the respondent for a period of more than 3 months, and if that eviction has taken place on the basis of recovery of dues or non-payment of the property, Page 4 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 those properties would be eligible for restoration. According to the policy, in case the property is surrendered on its own by the person occupying the property or if he has already received the refund, he shall not be considered to be entitled to avail the scheme. According to the policy, if there are any pending dues in any court of law in respect of the property, the pending case was required to be withdrawn and if the application of the allottee for restoration of the possession is rejected earlier, his application would not be considered for restoration of the possession under the scheme. 5.5 As per the policy, it was decided that before restoration of the possession of the property, the allottee is required to pay either all the dues of the GIDC or the existing rate of allotment prevailing in respect of the property whichever is higher and the allottee also is required to pay 10% higher amount than the rate of allotment which was existing on the date of notification.
Page 5 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 5.6 Pursuant to the aforesaid policy, the petitioner also applied for restoration of possession of his shed and shown his willingness to abide by the terms of the circular dated 28.1.2016 vide his application dated 21.12.2016. The respondent vide letter dated 30.1.2017 asked the petitioner to submit notarized pedigree of the deceased Rajesh Soparivala along with necessary identity proof of the legal heirs and also asked the petitioner to send a fresh proposal for restoration of possession with signatures of all the legal heirs.
5.7 The petitioner has fulfilled the aforesaid requirement vide their communication dated 20.2.2017. However, even after complying with the requirement of the respondent and despite repeated inquiries made with the respondent, no favourable reply was given to the petitioner until the respondent rejected the application of the petitioner dated 20.2.2017 vide letter dated 24.1.2018 without assigning any reasons. After receipt of the above order dated 24.1.2018, the petitioner made a representation to the respondent on Page 6 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 29.1.2018 and even the same was also rejected without assigning any reasons vide order dated 12.3.2018. 5.8 Being aggrieved by the aforesaid action of the respondent the petitioner filed application under the Right to Information Act on 5.10.2019 demanding necessary papers in respect of the property in question and upon receipt of the papers under the Right to Information Act, the petitioner found that vide noting No.43 dated 1.9.2017 of Deputy Manager (Recovery) it was opined that the policy is for restoration of the possession in favour of the original allottees and it does not speak about the legal heirs of the original allottees, and therefore, necessary orders be passed. On the basis of the aforesaid noting, all the officers further proceeded with the file and though vide nothing No.20 it was recommended that the possession could be restored in respect of the petitioner on the basis of the aforesaid query, the file started moving in different directions. The entire notings on the file which were produced by the petitioner reveal that the Page 7 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 petitioner's application for restoration of the possession was rejected only on the ground that as there is no mention about the fact that the legal heirs of the original allottees also would be entitled to take benefit of the restoration policy and as there is no specific mention about the eligibility of legal heirs, the respondent rejected the application of the petitioner on the ground that the policy is only meant for original allottees and it does not cover legal heirs, and therefore, application for restoration of the possession by the petitioner pursuant to the scheme dated 28.1.2016 was rejected. Therefore, being aggrieved by and feeling dissatisfied with the aforesaid action, the petitioner has preferred the present petition. 6 The respondent by way of filing reply raised number of contentions, including that the circular dated 28.1.2016 supersedes earlier circulars and there is no question of violation of any fundamental right and that the petitioner is claiming restoration of the possession of the property, which Page 8 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 was taken back before two decades. Surprisingly, the respondent took a stand in the affidavit in para 5 that the petition is filed in the year 2020 which is nothing but to harass and coerce the authorities and such act is nothing but a systematic way of arm twisting the corporation authority and if the petitioner was keen to start business he could have applied afresh through auction and the object of the petitioner is to grab the land without following due process of law.
6.1 In the reply, the petition was also opposed on the ground that no vested right inasmuch as fundamental right of the petitioner was violated. Further the respondent by way of the reply submitted that the respondent rejected the applications filed by the petitioner in 2016 and 2017 and yet the petitioner has challenged the inaction which amounts to sheer misleading statements, which are reprimandable, and therefore, the petition be dismissed with heavy exemplary costs. Page 9 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 6.2 Thereafter, a further reply was filed by the respondent on 22.9.2022 wherein the respondent took a contrary stand and submitted that the possession of the petitioner's plot was taken over on 22.2.1997 on account of non-payment of dues and on account of proceedings under the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972, the petitioner has no legal right to claim the aforesaid plot. In the further affidavit, in para 8 it is alleged that, "...where in all the records of GIDC, including the allotment, accounts and engineering files went missing and then after a period of 19 years from taking back the possession, i.e. on 2016 the petitioner claiming to be a legal heirs on one fine day came with this application for restoration and produced only selective documents that they were having, to get GIDC start back their file and approve the restore back application". In the further affidavit, the respondent also relied upon notifications dated 8.10.2020 and 22.9.2020 and tried to cover up their earlier act by stating that notification dated 8.10.2020 specifically envisages Page 10 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 only original allottees and their legal heirs while the notification of 2016 is specifically meant for original allottee only and thereby tried to justified its action of interpreting the circular dated 28.1.2016 as the circular meant only for original allottees and not legal heirs. A stand has been taken by the respondent that when any circular or notification states about original allottee, it would meant original allottee only and would not cover the legal heirs. In the further affidavit in para 15 the respondent tried to justify their action of stating that upon verification of the documents of the allotment letter offer-cum-allotment letter possession, etc. was in the name of Mr. Rajesh Soparivala, whereas, the documents like GPP, notice, eviction order contain the name of Rakesh Soparivala. Original documents are missing and therefore, in view of the discrepancy in the documents, more particularly by taking into consideration the fact that the possession was taken over from one Rakesh Soparivala, the case of the petitioner even otherwise is also not required to be considered.
Page 11 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022
C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 6.3 In the further affidavit, the respondent has dealt with application of amendment and submitted that the petitioner made a prayer about quashing the notification dated 28.1.2016 only vide application which was affirmed on 25.6.2022. The respondent also relied on the agreement in respect of allotment of plot and shed and claimed that the possession is only occupier and cannot be said to be allottee. 6.4 By taking the aforesaid stand taken in reply affidavit and further affidavit, the respondent tried to defend its case.
7 Mr.Patadia, learned advocate for the petitioner mainly argued in line with the submission made in the petition in the form of averments and submitted that application of the petitioner was rejected by the respondent authority without assigning any reasons at no point of time and no reasons were communicated to the petitioner. The petitioner was never heard before passing any such Page 12 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 order. It is also submitted by learned advocate for the petitioner that when the petitioner preferred application under the Right to Information Act, and asked for notings of the file whereby the application of the petitioner was forwarded at that time only the petitioner came to know that it is only on the basis of nothing No.43 of an officer of the rank of Deputy Manager (Recovery) for the first time an objection as to whether legal heirs of the original allottee are covered by the policy or not was raised, the policy was questioned by their own officers and even after more than 60 notings the petitioner was not communicated with the reasons and passed the order rejecting the application of the petitioner, which did not contain any reason.
7.1 Mr.Patadia, learned advocate for the petitioner pointed out that as per circular dated 16.7.2014 in respect of extension of restoration policy, the respondent authorities have specifically stated that if an application for restoration is preferred by the legal heirs of the original allottee Page 13 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 in that case upon scrutiny of the original documents, the properties can be transferred in their name by restoring back the possession in their favour. He further submitted that in view of the earlier policy, if there is any change in the policy whereby a particular class is excluded from the benefit, which was extended to them earlier in that case exclusion should be specific in the circular. The 2016 circular being silent about any such exclusion of any such class of persons for any common-man, it would be impossible to presume that now legal heirs are excluded from 2016 policy. Further, Mr.Patadia, learned advocate for the petitioner, submitted that the policy vide circular dated 28.1.2016 was introduced to see that the persons whose possession has been taken over prior to 3 months on account of non-payment of dues or on account of recovery, they can get back their possession by paying all the dues or existing price of the property whichever is higher and the allottee also is required to pay 10% higher amount than the rate of allotment which was existing on the date of notification. However, by rejecting Page 14 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 the petitioner's application on such technical reason, the entire purpose behind the policy would be frustrated. Learned advocate for the petitioner further submitted that there is no nexus between the purpose for which the policy is floated and the interpretation of respondent authorities of their policy omitting or excluding legal heirs of the original allottees. He further submitted that if there is any deviation in the previous policy of the respondent, in that case that deviation must be rationale and it must show some nexus with the object to be achieved with the policy.
7.2 By making the aforesaid submissions, Mr.Patadia, learned advocate for the petitioner prayed for allowing the petition by quashing and setting aside the action of the respondent of rejecting his application dated 21.12.2016 and 20.2.2017 vide orders dated 24.1.2018 and 12.3.2018 and prayed for quashing and setting aside the circular dated 28.1.2016 to the extent that it excludes the legal heirs of the original allottees. Page 15 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022
C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 8 Mr.Pavan Godiawala, learned advocate for the respondent Corporation though tried to defend the respondent, he repeatedly made one argument that in circular dated 16.7.2014, there is a specific mention about the fact that the legal heirs of the original allottee would be entitled for restoration of possession, whereas in 2016 policy there is no reference about eligibility of legal heirs of the original allottee and it would not cover any other class of persons except the original allottees and considering the fact that the restoration policy is based upon the discretion of the respondent Corporation, it cannot be questioned by the petitioner, and therefore, the petitioner is required to be dismissed.
8.1 Learned advocate for the respondent submitted that the petitioner has no vested right to seek restoration of possession, and therefore, the present petition is misconceived and required to be dismissed.
Page 16 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 8.2 Though learned advocate for the respondent tried to defend the petition, but he could not point out the nexus between excluding the legal heirs as the beneficiary of circular dated 28.1.2016 and object sought to be achieved by excluding them. Learned advocate for the respondent could not point as to what was the reason behind excluding the legal heirs of the original allottees as beneficiaries of the scheme when the legal heirs were extended the same benefit pursuant to the earlier scheme of the year 2014. Further Mr.Godiawala, learned advocate for the respondent though tried to justify the action of the respondent corporation he could not point out anything from the record which would suggest that at any point of time any discrepancy in respect of name of the allottee, Rajesh Soparivala and the person from whom the possession of the property was allegedly taken i.e. from Rakesh Soparivala were different and the same was not a clerical / typographical mistake. Learned advocate for the respondent also could not point out that how the Page 17 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 original papers are missing from the record of the respondent though the respondent is the custodian of the original papers relating to allotment and all consequential proceedings and how it is for the petitioner to produce original papers when the respondent is custodian of the original documents. He also could not point out anything from the material that for such lapse that the original papers are missing from the record of the respondent, any action is taken against the erring officers or not. 9 Except the aforesaid submissions, learned advocates for the parties have not made other submissions nor have cited any judgments. 10 This Court considered the submissions made by learned advocates for the rival parties and perused the record, including the affidavits filed by the respondent corporation.
10.1 It seems that a very small issue has been unnecessarily dragged by the respondent Corporation. Page 18 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 On one hand the respondent as can be seen from the record is coming up regularly with various schemes for restoring the possession of various properties for which the possession has been taken over by the respondent Corporation. It is specifically the case of the petitioner that he has applied for restoration of possession of his shed, possession of which was taken in the year 1997. On examination of 2016 policy, this Court found the following aspects:
[a] Circular dated 28.1.2016 does not say that the person whose possession is taken over before a particular number of years would not be entitled to apply for restoration.
[b] The policy is silent and does not have any clause which expressly excludes any particular kind of person / class / category, more particularly, the legal heirs.
[c] The policy specifically states that it is applicable to the properties which are evicted Page 19 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 from the allottees on account of proceedings under the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972. It does not say that 28.1.2016 circular supersedes all previous schemes for restoration.
[d] On examining circular of 2016, it appears that the respondent has taken a stand that though in circular dated 16.7.2014 there is a specific reference about eligibility of legal heirs of the original allottee, which is absent in the 2016 circular, and therefore, the case of the petitioner cannot be considered which appears to be unreasonable stand by the respondent.
[e] In the affidavit in reply, the respondent has taken a surprising stand that the possession of the petitioner's property was taken over before almost 19 years, and therefore, at this juncture, the petitioner cannot ask for restoration of the possession. As stated herein Page 20 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 above, the policy itself is to encourage the industrialists whose properties have been taken over by the respondent on account of proceedings under Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972 and on account of non-payment of dues or on account of recovery, and therefore, the stand taken by the respondent corporation by way of affidavits is considered in light of this policy, the affidavits of the respondent is contrary to its own policy.
[f] Either during the course of submissions or through affidavits, learned advocate for the respondent could not point out as to how the respondent would be prejudiced if the application of the petitioner is considered positively and the possession of the property in question is restored in favour of the petitioner. The petitioner has placed on record the photocopy of the notings of the file through which application of the petitioner was Page 21 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 processed and typed copies of the same are also produced on record. A perusal of the same would indicate that the property even at the time when the application of the petitioner was processed in the year 2017 was in dilapidated condition. 10.2 It seems that though the property was evicted in the year 1997, till the year 2017, the respondent could not find any of the buyer despite the property being in absolutely dilapidated condition. However, the petitioner is ready and willing to pay all the legal dues and has shown willingness to abide by the policy of restoration of the respondent vide circular dated 28.1.2016 and ultimately the respondent is going to get the amount of all its dues along with 10% charges as per the circular dated 28.1.2016. However, surprisingly for some extraneous considerations merely because some junior officer out of nowhere raised the objection about the legal heirs being eligible for the policy or not, without applying mind any further, all the higher authorities picked up that point to reject the Page 22 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 application of the petitioner without there being any justifiable reason.
10.3 It is not the case of the respondent that there is any dispute among the legal heirs of the deceased original allottee. However, the respondent rejected the application of the petitioner first without assigning any reasons and when the reasons were asked by the petitioner by way of application under the Right to Information Act, what came out was a hyper technical reason that the petitioners were legal heirs of the original allottee and not original allottees.
10.4 Instead of setting an example by accepting the mistake committed by its officers and also accepting the fact that if the application of the petitioner is accepted, it is not going to cause any prejudice to the respondent as the petitioner's application was in furtherance of achieving the object in respect of policy dated 28.1.2016 floated by the respondent itself, for no reason the Page 23 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 respondent filed reply after reply and opposed the petition vehemently. In fact, in first affidavit filed by one Mr.Yogeshsinh G. Parmar it is not stated that who the gentleman is and what position he is holding in the respondent corporation. The respondent in para 5 has stated as under:
"[5] Further the rejection of application for restoration was in the year 2018 and the petition is filed in the year 2020 which is nothing but to harass and coerce the authorities and such act is nothing but a systematic way of arm twisting the corporation authority. Further if the petitioners was so keen for starting of the business unit, could have applied fresh, through auction. The object of the present petition is to grab the land without following due process of law. The petitioners cannot assert their right on the basis of the either circular of 2014 and could have come with the clean hands instead of prejudicing the Hon'ble Court by stating the facts which are devoid of the substance of the facts."
10.5 The aforesaid stand of the corporation is surprising because though it is the respondent, who Page 24 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 harassed the petitioner all this time and yet it has taken stand that it is the petitioner, who is harassing the respondent and petitioner could have applied afresh through auction and such stand has come from respondent, which itself time and again floated various schemes for restoring the possession of the persons, who are disposed on account of various reasons, which are covered in the restoration policy. Further, the respondent in its further affidavit in para 7 has stated that it is the petitioner who is misleading respondent and therefore, the petition is required to be dismissed with heavy exemplary costs. The aforesaid stand is taken without there being any justification for the same and without bearing in mind the fact that the petitioner made application in the year 2016 once the respondent floated the scheme of restoration. If a public body takes such stand and kept on rejecting applications of the persons who really wish to get the benefit of any scheme, which is meant to boost the industrialization. The respondent authorities instead of encouraging such persons by taking a Page 25 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 reasonable view are rejecting the applications on hyper technical reasons, which will ultimately frustrate the purpose and object of the scheme. Further, though the respondent twice vide circular dated 24.1.2018 and 12.3.2018 rejected the applications of the petitioner without assigning any reasons, the respondent Corporation has thereafter for the first time vide affidavit dated 22.9.2022 in para 15 tried to justify their action by stating as under:
"15. It is respectfully at this juncture that upon verification of the documents of the allotment like the offer cum allotment letter, possession etc was in the name of Mr.Rajesh R. Sopariwala while the documents of the GPP, Notice, eviction order wherein the name of Rakesh K Sopariwala in the situation where all the original documents are missing even otherwise it would not be legally possible for restoration of the premises. A copy of the documents viz. allotment letter, possession receipt, eviction notice and order are collectively marked as Annexure B to the present affidavit. It is found from the original letter of allotment of February 1989 that Shri Rajesh R Page 26 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 Sopariwala was the proprietor of M/s. Sai Textiles over the subject plot while the eviction notice and order passed for the said plot and the eviction order which came to be passed wherein the possession was taken from M/s. Sai Textiles through Rakesh K. Sopariwala."
10.6 The respondent corporation while filing the aforesaid affidavit seems to have overlooked the fact that such schemes are floated by the respondent with a view to ensure that those persons, who had to give up the possession of their industrial units on account of financial crunch at the relevant point of time as they could not pay the amount of recovery or any of the dues of the respondent and are interested in carrying out business are encouraged, that too without causing any loss to the respondent corporation. In fact, the respondent also is keeping record of all the allotments made and all the proceedings carried out in respect of each shed and plot. It seems that in the instant case, the respondent has conveniently rejected the application without assigning the reasons.
Page 27 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 10.7 When the petitioner tried to know the reason by way of application under the Right to Information Act, it seems that the reasons surfaced were that the petitioners were not original allottees and legal heirs of the original allottee, who were not covered vide scheme dated 28.1.2016 and even the first affidavit dated 12.11.2020 was filed in that line. It is only in the second affidavit the respondent seems to have tried to dig out every record available with them and ultimately came out with one more reason after rejecting the application of the petitioner to justify their action that the petitioner also could not produce certain documents and there are discrepancies at the time when the possession was taken over. In fact, the respondent has in its affidavit on oath stated that possession was taken from one Rakesh Sopariwala and not from Rajesh R. Sopariwala and have pleaded ignorance about who that Rekesh Sopariwala was in absence of any document. If that is so, if the respondent has not taken over the possession of the premises in question Page 28 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 from its original allottee, can the action of respondent taking over possession from a stranger be said to be valid action. However, this Court does not want to go into all these issues and this Court is considering the validity of the circular dated 28.1.2016 so far as it adversely affected the present petitioners.
10.8 In para 15 of the further affidavit, the respondent - corporation has stated that some original documents are missing. However, the respondent authorities have failed to show that even once the petitioner was communicated to provide certain documents.
10.9 This Court has also considered the fact that despite trying to defend the petition vehemently, learned advocate Mr.Godiawala, could not point out a single thing which would establish any reasonable nexus as to why in 2014 policy the legal heirs of the deceased allottees were considered to be eligible for benefit of restoration of possession and Page 29 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 those were not considered to be eligible for the benefit of 2016 circular. This Court is of the view that in any of the schemes which is aimed for providing some relief to the people at large, the intention of the authority is usually to cover up the maximum persons and to give benefit of the scheme and if the intention of the authority is to limit it at a particular stage or particular class of persons, in that case the circular or notification must expressly convey it by way of necessary clause stating that a particular class (legal heirs of the original allottees, in the present case) would not be included or not eligible for the benefit of the scheme. In the instant case, in absence of any fault on the part of the legal heirs of the original allottee the respondent cannot deny such benefit to the petitioner.
11 In view of the aforesaid discussion, the present petition succeeds and the same is allowed. The impugned action of the respondents of rejecting the applications of the petitioner dated 21.12.2016 Page 30 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 and 20.2.2017 vide orders dated 24.1.2018 and 12.3.2018 are hereby quashed and set aside. Further, the action of the respondent authorities of not treating the legal heirs of the original allottees as eligible persons for the benefit of circular dated 28.1.2016 is also quashed and set aside and legal heirs of the original allottees are held eligible for making application pursuant to the circular dated 20.1.2016 of the respondent.
12 The respondent - Corporation is hereby directed to treat the petitioners as eligible for the benefit of 28.1.2016 scheme for restoration of the possession of the property in question and is directed to process the application of the petitioner and to take a fresh decision upon the same within a period of six weeks from the date of receipt of the order.
13 Considering the fact that the scheme is silent about those persons, who are not covered under the scheme merely because some officer raised a Page 31 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022 C/SCA/5592/2020 JUDGMENT DATED: 17/10/2022 technical objection about eligibility of legal heirs of the original allottees, as eligible persons to take benefit of the scheme and the application of the petitioner was rejected on such technical ground, which has caused tremendous hardship and harassment to the petitioner, the petition is required to be allowed by imposing costs of Rs.50,000/- upon the respondent. The respondent is free to recover the said costs from the erring officer(s) after following due process of law. Rule is made absolute to the aforesaid extent.
Sd/-
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 32 of 32 Downloaded on : Wed Oct 19 20:31:35 IST 2022