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2022 DIGILAW 640 (GUJ)

SURESHBHAI MITHABHAI PATEL v. STATE OF GUJARAT

2022-05-04

A.Y.KOGJE

body2022
JUDGMENT : A.Y. KOGJE, J. 1. Rule. Learned advocate Mr. Deep Vyas waives service of rule on behalf of respondent No. 2 and learned AGP waive service of rule on behalf of respondent Nos. 1 and 3. 2. This petition under Article 226 of the Constitution of India is filed by the petitioners for quashing and setting aside the order dated 28.06.2016 passed by the committee under the Urban Housing and Urban Development Department (UDHD) in a case being TPS/52 (North Ghodasar)/Sec. 67/4184. The petitioners had prayed for implementing of the town planning scheme No. 52-Ghodasar North by earmarking and handing over the vacant and peaceful possession and allotting separate final plot against the land bearing originally Hissa No. 2 of Survey Nos. 274+284+285 of village Ghodasar. In the alternative, the petitioners have also sought direction to the respondents to make allotment of Final Plot No. 103 or any other plot in the same scheme bearing identical measurements as the land bearing Hissa No. 2 of Survey Nos. 274+284+285 of village Ghodasar. 3.1 It is the case of the petitioners that the original survey Nos. 274, 284 and 285 of village Ghodasar were sold since 1942 from time to time and ultimately, the family members of the petitioners proposed to purchase part of the aforesaid survey numbers admeasuring 4593 Sq. mtrs, under agreement to sale in the year 1994. The aforesaid transfer was not a clear sale, but an understanding between the original owner and the petitioners herein in connection with the aforesaid land. It appears that the draft town planning scheme was framed and in that scheme, a road was carved out which was passing through the land identified as Hissa No. 2 and therefore, original owners made representations to the respondent authorities, objecting to carving out of the road through the land. It appears that on 31.07.2000, a notice came to be issued to the petitioners for vacating lands so as to enable the respondent-corporation to use the land for laying down of a water line. Against which also a representation was made however, in the draft town planning scheme, four final plots being 46/1, 46/2, 46/3 and 46/4 were proposed to be allotted to all the owners jointly of the land bearing survey Nos. 274, 284 and 285. Against which also a representation was made however, in the draft town planning scheme, four final plots being 46/1, 46/2, 46/3 and 46/4 were proposed to be allotted to all the owners jointly of the land bearing survey Nos. 274, 284 and 285. At that time also, the authorities were made aware about the fact that the said Hissa/portion of the land jointly owned by different owners. 3.2 It is submitted that there were internal disputes about the joint plots on the original survey numbers by which Civil Suit was also filed. Reference is made to Civil Suit No. 2307 of 2003 by the plot holders against the State Government and Town Planning Authorities. In the said civil suit, relief was sought that the plaintiffs be allotted final plot in the open land of the original plot No. 40 or any other plot which is an open land. By way of interim relief, the City Civil Court directed the corporation not to disturb the possession of the plaintiffs therein, till finalization of the town planning scheme. On account of the said order, on 10.12.2004, the Town Planning Officer had called upon the interested person in the plot to make submissions. At that time also, interested persons had requested the Town Planning Officer to carve out final plots in a fashion so that they may get an open land against the land deducted for the town planning scheme. Thereafter, again when the scheme was sanctioned and the owners were allotted joint plots, another Civil Suit No. 495 of 2006 came to be filed contending that there was partition amongst the joint owners. It is submitted that after the issue with regard to the original joint owners of the plot in question was settled, the original owner of the part of the plot with which the petitioners are concerned, one Dalpatji and other owners executed a registered sale deed in 2008 in favour of the petitioners and the revenue entries in that regard were also posted and according to the rights adjudicated, Hissa No. 2 admeasuring 4593 Sq. mtrs fell in the share of Dalpatji, who entered into sale deed with the petitioners. mtrs fell in the share of Dalpatji, who entered into sale deed with the petitioners. It is submitted that time and again all the persons who were interested had made representation to the revenue authorities as well as town planning authorities to recognize the partition which is made and the interests which were created of the joint plot holders and to avoid complication, allot proper demarcated final plots. It is submitted that during the framing of the town planning scheme, the Town Planning Officer did issue notice however, such notice was only issued to one Raymalbhai, who did not represent the interest of all the joint holders though the authorities were aware of the joint ownership of the plot no notice was ever issued nor they were heard in connection with the framing and finalization of the town planning scheme by the Town Planning Officer. It appears that ultimately in the preliminary town planning scheme joint final plot Nos. 46/1 to 46/4 were allotted and there were about 96 persons who were allotted joint ownership. 3.3 It is submitted by learned advocate for the petitioners that considering the nature of ownership existing in sub-plot, Town Planning Officer has not applied his mind in framing the town planning scheme insofar as Survey Nos. 274, 284 and 285 are concerned particularly Hissa No. 2 with which the petitioners are concerned. It is submitted that as a last resort on 24.10.2013, an application was made by the petitioners praying for earmarking the plot and handing over the possession of such plot to the petitioners in lieu of their original survey numbers by implementing town planning scheme in true letter and spirit. 3.4 Learned advocate submitted that on account of no response being received, the petitioners had filed Special Civil Application No. 18447 of 2013 for handing over the peaceful and vacant possession of final plot which is granted in lieu of petitioners’ open land which was marked as Hissa No. 2 in survey Nos. 274, 284 and 285 of village Ghodasar. 3.4 Learned advocate submitted that on account of no response being received, the petitioners had filed Special Civil Application No. 18447 of 2013 for handing over the peaceful and vacant possession of final plot which is granted in lieu of petitioners’ open land which was marked as Hissa No. 2 in survey Nos. 274, 284 and 285 of village Ghodasar. It is submitted that the petition was filed on 21.12.2013 however, the petitioners were served notice dated 17.12.2013, directing the petitioners to handover the plots of the land of their survey numbers and have offered the possession of the final plot however, the final plot allotted to the petitioners was not an open land and therefore, the petitioners were unable to take the possession of the final plot. This Court by an order dated 03.02.2014 had granted an interim relief in Special Civil Application No. 18447 of 2013, directing the maintenance of status-quo. It is submitted that pending the petition, a Circular dated 31.08.2015 was issued by the State Government, whereby the committee was constituted to decide the applications which are required to be considered as subject under Section 67A of the Gujarat Town Planning and Urban Development Act, 1976 (for short “the Act”) and therefore, this Court had passed an order directing the petitioners to file application in terms of the aforementioned circular and directed the authorities to take a decision in exercise of powers under Section 67A of the Act. 3.5 Learned advocate for the petitioners submitted that despite the directions of this Court, the committed passed an impugned order apparently by recording facts, but without considering the controversy or resolving controversy and ultimately concluded that the subject matter raised before the appeal committee did not constitute a subject covered under Section 67A of the Act. Learned advocate for the petitioners submitted that long time has passed since the town planning scheme has been sanctioned and still the respondent authorities are unable to earmark the portion of the final plot allotted and given to the joint owners of such final plots so that the vacant and peaceful possession is given to the petitioners. It is submitted that time and again this Court has taken a decision that in fact, handing over and taking over the final plots should be undertaken simultaneously between the authorities and the interested person. It is submitted that time and again this Court has taken a decision that in fact, handing over and taking over the final plots should be undertaken simultaneously between the authorities and the interested person. 3.6 Learned advocate draws attention of this Court to several unreported judgments to support the contention of the petitioners that the petitioners are entitled to vacant and peaceful possession. 4. Learned advocate Mr. Deep Vyas appearing for the respondent-corporation submitted that the State Government as well as Town Planning Officer have complied with the requirement of Act and today preliminary Scheme No. 52, North Ghodasar has already been sanctioned in the year 2012 and therefore, has now become part of the Act. Learned advocate for the respondent-corporation submitted that in view of the stay granted by this Court only a small portion of the town planning road has remained undeveloped and therefore, even an application is moved for vacating the interim relief granted by this Court. It is submitted that the respondent-corporation is in urgent need for laying down of the road especially as the construction work of a over-bridge is in progress and therefore, this plot of land is very much in requirement for diversion of traffic and in fact the work order has also been issued in this regard. 5. In rejoinder, learned advocate for the petitioners submitted that the petitioners have always co-operated with the respondent-corporation as and when they required plot of land for laying down drainage and petitioners had not objected and in fact even today the petitioners would be satisfied if earmarked portion of plot is granted against the Hissa No. 2 of the petitioners and vacant and peaceful possession is handed over to them. 6. The Court has heard learned advocates for the parties and perused the documents placed on record. The dispute pertains to a plot of land which is identified as Hissa No. 2 of survey Nos. 274+284+285 of village Ghodasar, which fell in Town Planning Scheme No. 52, North Ghodasar. From the record, it appears that the original land owner was one Sheikh Rahimbhai Samirbhai of the entire plot of land which consist of the aforesaid three survey numbers, which came to be sold firstly in the year 1992 in favour of eight independent persons. 274+284+285 of village Ghodasar, which fell in Town Planning Scheme No. 52, North Ghodasar. From the record, it appears that the original land owner was one Sheikh Rahimbhai Samirbhai of the entire plot of land which consist of the aforesaid three survey numbers, which came to be sold firstly in the year 1992 in favour of eight independent persons. Thereby, dividing the aforesaid survey numbers into eight shares and it is submitted by the petitioners that each share was admeasuring 4593 sq. mtrs. One of the 8th shares went in the name of one Naranbahi Ganeshbhai from whom one Dalpatji Naranji inherited 4593 Sq. mtrs of land and mutation was accordingly carried out in the revenue record in 1994. This 8th share of Dalpatji in the original survey numbers was transferred to the petitioners firstly by an agreement to sale in favour of family members of the petitioners and subsequently by a sale deed. These aforesaid three survey numbers became the part of the town planning scheme under the draft town planning scheme which came to be sanctioned by the UDHD Notification No. GH/V/69 of 1992/TPS/1190/497(2)-L dated 08.04.1992. 6.1 Accordingly, by a notification dated 21.07.1992, the Town Planning Officer came to be appointed to frame the town planning scheme and at different time, different Town Planning Officers came to be appointed from time to time and on 09.09.2011, the Town Planning Officer submitted town planning scheme for sanction to the State Government. The scheme was submitted for sanction on 03.12.2011. 6.2 The Town Planning Scheme No. 52, North Ghodasar came to be sanctioned by the State by a Notification No. GH/V/184 of 2012/TPS/112011-6096-L dated 08.04.1992 dated 25.09.2012. From the part plan placed on record at Annexure-R4 and the redistribution form at Annexure-R5 go on to indicate that the revenue survey Nos. 274+284+285 was given O.P. No. 46 admeasuring 33185 sq. mtrs, where 96 persons were shown as joint owners. This original plot was thereafter allotted final plot Nos.46/1, admeasuring 647 sq. mtrs, 46/2 admeasuring 6938 sq. mtrs, 46/3 3803 sq. mtrs and 46/4 admeasuring 13259 sq. mtrs. Thereby, the final plot was admeasuring 24647 sq. mtres against original plot admeasuring 33185 sq. mtrs. In the remarks column of redistribution form, it was noted as under: (1) The Share of the Land Owners in the Final Plot shall be in proportion of their share in the Original Plot. mtrs and 46/4 admeasuring 13259 sq. mtrs. Thereby, the final plot was admeasuring 24647 sq. mtres against original plot admeasuring 33185 sq. mtrs. In the remarks column of redistribution form, it was noted as under: (1) The Share of the Land Owners in the Final Plot shall be in proportion of their share in the Original Plot. (2) The right of the lien of the other right holders shall remain unchanged in the final plot. (3) The interest of the Government shall remain unchanged in the surplus land of 5285 sq. mt. Of Survey Nos. 274+284+285. (4) Area of the Original Plot has been regulated as per Assessment (sheet) and Mutation (Durasti - Kami Jasti) sheet of form-26. (5) The construction exists. 7. On the part plan of the Town Planning Scheme No. 52, these plots from 46/1 to 46/4 are located adjacent to the intersection between 12 meter town planning road and 24 meter town planning road. It appears that the petitioners have from the beginning represented their case particularly on the ground of several joint holders of the original plot and survey numbers and therefore, it was incumbent for the corporation to resort to the proceedings so that each of such joint plot holders are able to identify their respective plots proportionately allotted to them in the final plot. When this was not done and the respondent-corporation sought to take over the possession, it appears that some of the joint plot holders were adversely affected on account of their plot of lands because they were lying either on the town planning road or adjacent to it because of which, they had to loose some part of their land and hence, Special Civil Application No. 18447 of 2013 came to be filed. By an order dated 03.02.2014, this Court had directed the parties to maintain status-quo in connection with the disputed land and subsequently by an order dated 12.10.2015, Special Civil Application No. 18447 of 2013 came to be disposed of. By an order dated 03.02.2014, this Court had directed the parties to maintain status-quo in connection with the disputed land and subsequently by an order dated 12.10.2015, Special Civil Application No. 18447 of 2013 came to be disposed of. In the order dated 12.10.2015, this Court had expressed opinion that the issue sought to be raised in the petition therein can be admitted to be resolved under Section 67A of the Act and therefore, by taking into consideration the Circular dated 31.08.2015, under which the committee was constituted to be dealt with the subject under Section 67A of the Act, directions were given to the petitioners to file an application. Accordingly, it was directed in para-6 in order dated 12.10.2015, which reads as under: “6. In view of the aforesaid order and more particularly as the petitioners are now to approach the committee under Section 67 of the Act, as till the said issue is decided the scheme qua plot in question shall not be implemented. It is clarified that this Court has not expressed any opinion on merits and the committee shall take appropriate decision in accordance with law.” 8. It is pertinent to observe qua the plot in question, town planning scheme was directed not to be implemented. Pursuant to such direction, when the petitioners made a detailed representation, the committee passed impugned order dated 28.06.2016 and while examining the representation and the observations of this Court, the committee passed an order to the effect that the prayer made by the petitioners for grant of final plot against the land held by the petitioners would not fall within the jurisdiction of the committee while exercising powers under Section 67A of the Act. Section 67A of the Act came to be initiated in the Act w.e.f. 21.01.2015 pursuant to which also previous petition came to be disposed of. Section 67 of the Act thus inserted provided for the manner of resolution of grievances after sanctioning of the scheme and sub-section 3 provided that the decision of such committee would be deemed to be the part of the scheme sanctioned under Section 65 of the Act. Section 67 of the Act thus inserted provided for the manner of resolution of grievances after sanctioning of the scheme and sub-section 3 provided that the decision of such committee would be deemed to be the part of the scheme sanctioned under Section 65 of the Act. 8.1 Section 67A of the Act provided that in case where final plot is allotted to several persons who were having joint ownership of the original plot/survey number and given final plot in sanctioned, preliminary or final scheme then on application being made to such committee by the joint owners, the committee shall after giving notice to all the concerned and opportunity of being heard to all, define the share of the joint holders and demarcate the area that may be allotted to each of them in such final plot. In the facts of this case, it is evident that the final plot allotted being 46/1 to 46/4 is having joint ownership of almost 96 persons including the petitioners and therefore, it was incumbent upon the respondent-corporation to undertake the exercise in making proportionate allotment to the joint plot holders, who were allotted the joint final plot. In the opinion of the Court, the joint holders could not be kept high and dry by taking over the possession of the part of the plots from the original plots/survey numbers and leaving it upon the joint holders to intersay fight amongst themselves for getting their proportionate share in the final plot. As is seen in the facts of the present case and as is evident from the part plan placed on record, the entire complexion of the original survey number/original plots has changed, once two town planning roads being cut across from these plots of land. In the opinion of the Court, to meet with such situation only, the State has thought it fit to insert Section 67A of the Act as recent as in the year 2015 and therefore, cryptic order of declaring the issue not falling even their jurisdiction in exercise of Section 67A, cannot be countenanced . 8.2 It is true that requirement of the respondent-corporation is also urgent considering the town planning road being laid down and major part of such road having been constructed and only portion of it is remaining and for which work order is also been issued in the year 2021. 8.2 It is true that requirement of the respondent-corporation is also urgent considering the town planning road being laid down and major part of such road having been constructed and only portion of it is remaining and for which work order is also been issued in the year 2021. The Court observes that the petitioners have come forward and have clearly stated on oath in its affidavit-in-reply to the Civil Application for vacating the interim stay, which would read as under: “......It is reiterated, that the petitioners would be satisfied even with earmarking of the portion of Final Plot that is granted in lieu of Hissa No. 2 and handing over of vacant and peaceful possession of the same.” 9. Be that as it may, the Court is inclined to set aside the order dated 28.6.2016 and direct the appeal committee to reconsider the case of the petitioners in true letter and spirit of Section 67A of the Act and in accordance with the procedure prescribed therein. While doing so, the appeal committee under Section 67A of the Act may also keep in mind the observations made by several benches of this Court in various pronouncements with regards to smooth exchange of the plot held by the interested persons and the respondent authorities. It is open for the respondent-corporation to file separate application for completing the proceedings in stipulated time, which the committee may consider in accordance with law. 10. Considering the fact that the joint owners of the final plots are 96 persons in number, which exercise may prolong laying down the town planning road, the Court leaves it upon the committee to restrict their decision only qua the present petitioners qua whom it is open for them to demarcate and identify the plots to be allotted against the plot of land of the petitioners which are appropriated in the town planning scheme. It is observed that no fresh representation is required to be made by the petitioners in this regard and the committee may take into consideration the record already available with the committee in this regard and after giving an opportunity of hearing to the petitioners again may dispose of the proceedings expeditiously. Considering the urgency in the matter, it is open for the respondent-corporation to file separate application for completing the proceedings in stipulated time, which the committee may consider in accordance with law. 11. Considering the urgency in the matter, it is open for the respondent-corporation to file separate application for completing the proceedings in stipulated time, which the committee may consider in accordance with law. 11. It is observed that from the earlier round of litigation, this Court has ordered maintenance of status-quo, which in the facts of the case, the Court is inclined to extend the same till the decision is taken by the appeal committee in exercise of powers under Section 67 of the Act. 12. With the aforesaid the petition stands allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted. Interim relief, if any, stands vacated. 13. In view of the order passed in the main matter, the Civil Application does not survive and disposed of accordingly.