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2021 DIGILAW 1283 (GUJ)

JAYPRAKASH KARSANBHAI PATEL v. STATE OF GUJARAT

2021-12-24

BIREN VAISHNAV

body2021
JUDGMENT : 1. By way of this petition, under Article 226 of the Constitution of India, the petitioners have prayed for a writ of mandamus or any other appropriate writ directing the respondents to hand over the peaceful and vacant possession of the land admeasuring 2091 square meters of Final Plot No.117, Town Planning Scheme No.18 (Ghatlodiya – Chandlodiya – Sola). 2. Facts in brief are as under: 2.1 It is the case of the petitioners that they are owners of land bearing survey no.159/3, admeasuring 3845 square meters. The petitioners state that they had given applications on 12.10.2015 requesting the respondent no.4 to hand over vacant possession of land admeasuring 2091 square meters of Final Plot No.117. The case of the petitioners is that they are not being handed over vacant possession of the Final Plot as there are encroachments. According to the petitioners the respondents have committed breach by not handing over possession and therefore aggrieved by this, the petition is filed. 3. Mr.Gautam Joshi learned Senior Advocate with Mr.Abhisst Thakar appearing for the petitioner would submit that by virtue of the coming into force of the Town Planning Scheme, the petitioners have carried out their obligation and handed over possession of the Original Plot. In lieu of handing over such possession, the respondents were to hand over possession of two Final Plots viz. Final Plot No.117 and 128. Possession of Final Plot No.128 has been handed over. Constructions have been carried out pursuant to the permission granted by the authorities. However, the other Final Plot No.117 is not being handed over in order to honor and reciprocate the obligation by the Corporation. In support of his submissions, Mr.Joshi learned Senior Advocate would rely on the decision in case of The Municipal Corporation for Greater Bombay and Another v. The Advance Builders (India) Pvt. Ltd. And Ors. reported in 1971 (3) SCC 381 . He would draw the attention of the Court to para 9 thereof and submit that in accordance with the provisions of the Act, all lands, once the scheme comes into force, vest absolutely in the local authority. The original plots which are reconstituted shall become subject to the rights settled by the Town Planning Officer. He would draw the attention of the Court to para 9 thereof and submit that in accordance with the provisions of the Act, all lands, once the scheme comes into force, vest absolutely in the local authority. The original plots which are reconstituted shall become subject to the rights settled by the Town Planning Officer. 3.1 It is therefore the submission of Mr.Joshi that it cannot be the stand of the Corporation that unless and until encroachments are removed by the petitioner, the vacant plot / the final plot cannot be handed over to the petitioners. 3.2 Mr.Joshi would also lay emphasis on the case of The Advance Builders (India) Pvt. Ltd. (supra) and submit that the Court had observed that even if the area was full of slums, it was necessary for the Corporation to take action for implementing the scheme and eject the hutment dwellers so as to implement the Town Planning Scheme. 3.3 Mr.Joshi would also rely on the decision in the case of Rajeshbhai Vitthalbhai Sardhara v. State of Gujarat reported in 2016 SCC OnLine Guj 6170. 4. Mr.Deep Vyas learned counsel appearing for Ahmedabad Municipal Corporation would rely on the affidavit-in-reply filed by the Corporation and submit that the relief as prayed for cannot be granted. He would submit as under: 4.1 That there appears to be no possession receipt to show that physical possession of the original plot was handed over to erstwhile AUDA or the Ahmedabad Municipal Corporation. Despite notices dated 05.12.2005, 15.02.2006 and a communication dated 04.08.2008, requesting the original owners to hand over possession, the possession was not given. In fact, when commencement letter/Rajachhithi was granted in context of Final Plot No.128, the Original Owners were required to furnish opinion of execution of the T.P.Scheme. Mr.Vyas would invite the attention of the Court to the letter of 01.11.2010, particularly condition no.6 of the commencement letter which stipulated that this permission was granted subject to the condition that the opinion for the T.P.Scheme execution will be produced. In absence of proof of such production, the building use permission was granted by error. He would further submit that from the tax records and on the basis of verification of the occupation of the original plot, the age of the building on the plot was over 31 years old. In absence of proof of such production, the building use permission was granted by error. He would further submit that from the tax records and on the basis of verification of the occupation of the original plot, the age of the building on the plot was over 31 years old. He would draw the attention of the Court to Form-F and submit that under the sanctioned scheme of land bearing Survey No.159/3 (Original Plot No.102/2) admeasuring 3845 square meters, the owners were allotted two Final Plots vis. 117 admeasuring 2091 square meters and No.128 admeasuring 793 square meters. On plot No.128, a scheme in the name of ‘Sun-Divine-3’ has been developed. From the records, it has come to the knowledge of the Corporation that there is about 400 square meters of land from the original plot which has merged with the final plot no.117. The petitioners have not given possession of the occupied area of 1460 square meters. 5. Having considered the submissions made by the learned advocates for the respective parties, what is evident is that the only pleading that the petition reflects is a simplicitor exercise that was warranted by the Corporation viz. to handover vacant possession of Final Plot No.117. The petitioners, wanted the Court to pursue that nothing remains pending in the exercise of mutual handing over and taking over of plots but for the Corporation’s obligation to hand over Final Plot No.117. 6. Reading the affidavit, reveals true picture. When read in juxtaposition with Form F, what is evident is that from the original plot no.159/3 admeasuring 3845 square meters, the petitioner was allotted two Final Plots viz. Plot 117, admeasuring 2091 square meters and Final Plot No.128, admeasuring 793 square meters. 7. The contention of the learned counsel for the petitioners that the obligation to hand over possession of Final Plot No.117 became even more important and mandatory because on plot no.128 construction had been carried out based on the commencement letter. Unfortunately, the petitioners though expected to reveal the complete truth, failed in doing so, because when the commencement letter dated 01.11.2011 is read, it made the commencement letter conditional inasmuch as, it required the parties to furnish an opinion of the execution of the T.P.Scheme. The petitioner had failed to do so. Unfortunately, the petitioners though expected to reveal the complete truth, failed in doing so, because when the commencement letter dated 01.11.2011 is read, it made the commencement letter conditional inasmuch as, it required the parties to furnish an opinion of the execution of the T.P.Scheme. The petitioner had failed to do so. Therefore, merely because permission was granted for construction on plot no.128 and the constructions were made will not ipso-facto make it obligatory for the Corporation to handover possession of plot no.117 when in fact, it has been found that the entire original plot was not handed over to the Corporation. Notices have been produced on record to suggest that the original owners failed to handover possession and in fact, the predecessors in title who were owners pre the petitioners who had bought the land only on 30.09.2009, five years before the sanction of the preliminary scheme, had in possession the original plot on which construction existed, the age of which was 31 years. 8. Mr.Deep Vyas learned counsel for the respondent Corporation would therefore rightly rely on the decision of this Court in case of Khodaji Mafaji Thakor v. Ahmedabad Urban Development Authority reported in AIR 2005 Guj 200 . Relevant paras would read as under: “4. Heard the learned advocates appearing on behalf of the parties. It is an admitted position, that in the Town Planning Scheme, the petitioners are allotted three Final Plots bearing No. 181, 182 and 38 in lieu of Revenue Survey No. 1255, Original Plot No. 173. The petitioners are allotted the land admeasuring 11211 sq.mtrs. of land against their original holding of 15884 sq.mtrs. Thus, the petitioners are required to hand over some portion of the land to the appropriate authority. As stated in the affidavit-in-reply, which is not disputed by the petitioners, some portion of the land from the land bearing Survey No. 1255, O.P. No. 173 which is required to be handed over to the appropriate authority under the Town Planning Scheme Vejalpur-III is not handed over by the petitioners. As stated in the affidavit-in-reply, which is not disputed by the petitioners, some portion of the land from the land bearing Survey No. 1255, O.P. No. 173 which is required to be handed over to the appropriate authority under the Town Planning Scheme Vejalpur-III is not handed over by the petitioners. On the one hand the petitioners are not handing over possession of the land which is required to be handed over to the appropriate authority under the town planning scheme which has become final, and on the other hand the petitioners are making a prayer with regard to handing over of the possession of the land in question which is allotted to the petitioners under the town planning scheme. When the petitioners are not ready to fulfil their obligation of handing over possession of the land which is required to be handed over to the appropriate authority under the town planning scheme which has become final which is the duty of the petitioners, it is not open for the petitioners to make a grievance that the respondents are not handing over possession of the land which is allotted to them. If the petitioners want possession of the land which is allotted to them simultaneously the petitioners are bound to hand over possession of the land which is required to be handed over to the appropriate authority under the town planning scheme. 5. Under the circumstances, it is required to be observed that unless and until the petitioners hand over possession of the land which is required to be handed over by the petitioners to the appropriate authority under the town planning scheme which has become final, no relief can be granted in favour of the petitioners. However, as and when the petitioners hand over possession of the land to the appropriate authority which they are required to hand over under the town planning scheme which has become final, simultaneously the respondents are directed to hand over possession of final plot No. 181 to the petitioners as per the town planning scheme which has become final. With these observations and direction, the present Special Civil Application is disposed of. Rule is discharged.” 9. In view of these factual details, the petitioners’ prayer for handing over possession of Final Plot No.117 is misconceived. The petition is therefore dismissed with no order as to costs. Notice is discharged.