Harishbhai Tapubhai Shekhava vs Ahmedabad Municipal Corporation
2021 Latest Caselaw 1732 Guj

C/LPA/1640/2017                                                 JUDGMENTDT.05.02.2021
ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.


        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/LETTERS PATENT APPEAL NO. 1640 of 2017
                              In
         R/SPECIAL CIVIL APPLICATION NO. 12798 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI

==============================================================

1   Whether Reporters of Local Papers may be allowed                         Yes
    to see the judgment ?

2   To be referred to the Reporter or not ?                                  Yes

3   Whether their Lordships wish to see the fair copy of                     Yes
    the judgment ?

4   Whether this case involves a substantial question of                      No
    law as to the interpretation of the Constitution of
    India or any order made thereunder ?

==============================================================
           HARISHBHAI TAPUBHAI SHEKHAVA & 4 other(s)
                           Versus
         AHMEDABAD MUNICIPAL CORPORATION & 2 other(s)
==============================================================
Appearance:
MR VIKRAM J THAKOR(2221) for the Appellant(s) No. 1,2,3,4,5
MR DEEP D VYAS(3869) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
==============================================================

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
       and
       HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 05/02/2021

                              ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

1. This intra-Court Appeal arises out of order dated 05.07.2017

passed by learned Single Judge dismissing the Special Civil Application

No.12798 of 2016 filed by the present five appellants - Harishbhai

Tapubhai Shekhava, Parshottambhai mangabhai Thakore, Dilipbhai

Parshottambhai Thakor, Bhupendrabhai Parshottambhai Thakor and

Vihaji Mangaji Thakor.

2. The facts giving rise to the present Letters Patent Appeal in a

nutshell are as under.

2.1 The Appellants - Petitioners claimed their alleged rights over the

land in question, situated at Vejalpur-2, on the basis of an Agreement to

Sell executed by Vendor, who was not a party before the learned Single

Judge, in their favour in the year 1986, for which the Appellants -

Petitioners claimed that they have filed a Civil Suit for specific

performance after 30 years in 2016 namely, Civil Suit No.567 of 2016,

which is pending in the Court of Principal Senior Civil Judge,

Ahmedabad (Rural), in which, the issues are yet to be framed and hearing

on the Injunction Application is to take place. The same Vendor appears

to have executed and registered a Sale-Deed in favour of a third party,

one Mr. Hanubhai Ramjibhai Sanghai, which Sale Deed is also said to

have been challenged in the same Suit for specific performance namely,

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

Civil Suit No.567 of 2016.

3. The Appellants - Petitioners further claimed that the respondent

Ahmedabad Municipal Corporation served the impugned Notice-cum-

Order dated 31.03.2016 under Section 68 of the Gujarat Town Planning

and Urban Development Act, 1976 seeking to evict them from the said

site in question on the ground that a public road was to be widened to the

extent of 24 Mtrs. at the said place and to protect their right of

possession, which they claimed through the said Agreement to Sell of

1986. The Appellants - Petitioners approached the learned Single Judge

by way of aforesaid Writ Petition, which was, however, dismissed by the

learned Single Judge by the order impugned before us and hence the

present Letters Patent Appeal.

4. Learned counsel for the Appellants - Petitioners, Mr. Vikram J.

Thakor, submitted that the appellants - petitioners have not encroached

any part of the Road intended to be widened and under the Preliminary

Scheme and Final Scheme announced by the Town Planing Authority

under the provisions of The Gujarat Town Planning and Urban

Development Act, 1976, the Final Plot and Original Plot over which the

Appellants - Petitioners are claiming their rights, is the same and

therefore, the Appellants - Petitioners being within the boundary of the

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

said plot of land in question, are not encroachers of the land in question

anyways, and therefore, the impugned notice given by the Ahmedabad

Municipal Corporation deserves to be quashed and set aside leaving the

rights of the parties under the Agreement of 1986, to be adjudicated by

the learned Trial Court in the aforesaid Civil Suit.

5. The learned counsel also submitted that the Appellants - Petitioners

deposited the fees for regularization of some construction raised by them

on the said land in question, as the possession of the land in question was

given to them by the Vendor and receipts of Rs.10,000/- each for three of

such petitioners are produced on record. The said Receipts are dated

14.06.2004. He submitted that these payment of fees for regularization

would not have been taken by the Ahmedabad Urban Development

Authority, if the Appellants - Petitioners had encroached upon any part

of the public road, and therefore, it should be presumed that the

Ahmedabad Urban Development Authority has regularized the said

construction over the land in question belonging to the Appellants -

Petitioners. However, no such order of regularization was passed and had

it been passed, it was for the Appellants - Petitioners to place the same on

record.

6. After the dismissal of the Writ Petition, in the present intra-Court

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

Appeal, an interim order came to be passed by a co-ordinate Bench of this

Court on 25.09.2017 in terms of prayer clause 3(B) in Civil Application

No.12624 of 2017 with the condition that the Appellants - Applicants

shall not alter the construction and shall also not alienate or transfer the

land in question in favour of any third party. The said ad-interim order

dated 25.09.2017 was continued till further orders and is continuing even

now.

7. On the other hand, Mr. Deep D.Vyas, learned counsel appearing

for the Ahmedabad Municipal Corporation urged that after framing of the

Scheme by the State Government, in terms of the provisions of The

Gujarat Town Planning And Urban Development Act, 1976, such

Scheme forms part of the Act itself, by virtue of deeming provisions of

Section 65(3) of the Act and Section 67 of the said Act provides that on

the day on which the Preliminary Scheme comes into force, all lands

required by the Appropriate Authority shall, unless it is otherwise

determined in such Scheme, vest absolutely in the appropriate authority

free from all encumbrances. Clause (b) of Section 67 further provides that

all rights in the Original Plots which have been re-constituted into Final

Plots shall determine and Final Plots shall become subject to the rights

settled by the Town Planning Officer.

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

8. The learned counsel for the respondent - Ahmedabad Municipal

Corporation has further drawn our attention to Section 68 of the said Act,

which provides power to the appropriate authority to summarily evict the

occupants of the land in question, which vests with the State Government

in terms of Section 67 of the Act. He submitted that the impugned Notice

was given to the Appellants - Petitioners under the provisions of Section

68 of the Act, which was challenged by the Appellants - Petitioners

before the learned Single Judge. He further submitted that the rights of

the Appellants - Petitioners have not yet crystallized under the

Agreement to Sell of 1986, for which a Civil Suit is said to be pending,

and therefore, the title of the Appellants - Petitioners on the said land is

not established anywhere. He has further submitted that no order for

regularization of construction has ever been passed in favour of the

Appellants - Petitioners, for which the Receipts of Rs.10,000/- were

produced before this Court. Therefore, no right on that basis can be

claimed by the Appellants - Petitioners. The learned counsel for the

Ahmedabad Municipal Corporation, therefore, submitted that the work of

widening of the public road at all other places has been completed, except

for the portion on which the appellants - petitioners are claiming such a

right which does not exist with them and because of the interim orders

granted by this Court, the said work in the public interest could not be

completed so far. He therefore, prays for dismissal of this intra-Court

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

Appeal.

9. Having heard learned counsel at length and upon perusal of the

material on record and statutory provisions, we are satisfied that there is

no merit in the present Appeal and the same deserves to be dismissed.

The rights of the Appellants - Petitioners over the land in question are

even by now subject matter of a Civil Suit said to have been filed by the

Appellants - Petitioners for specific performance under an Agreement to

Sell executed by the Vendor way back in the year 1986. The said Civil

Suit itself, admittedly has been filed after 30 years, in the year 2016 and

is said to be pending as Civil Suit No.567 of 2016 in the Court of

Principal Civil Judge, Ahmedabad (Rural), in which, even the issues are

yet to be framed. The land in question is already transferred to a third

party under the Registered Sale Deed. Thus, as far as the private civil

rights of the parties are concerned, it is a matter of adjudication by the

competent Trial Court.

10. Be that as it may, the cause of action which arose before the

learned Single Judge, was in pursuance of the impugned action taken by

the respondent - Ahmedabad Municipal Corporation for widening of the

Road to the extent of 24 Mtrs., which is undoubtedly in public interest

and therefore, land under the Scheme framed under the provisions of The

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

Gujarat Town Planning and Urban Development Act, 1976, could be so

acquired and vested with the State irrespective of the final determination

of the private civil rights of the parties. Even if the Appellants -

Petitioners are on the land as occupiers, the authority concerned was

entitled to remove and summarily evict them from the land in question.

The claim of the Appellants - Petitioners that they have not encroached

upon any part of the public road, is itself, a disputed question of fact on

which we do not find any findings from any Competent Authority or

Court of law in favour of the Appellants - Petitioners that their claimed

possession is not on any part of the public Road in question under the

Scheme framed by the State / Town Planing Authority under the

provisions of The Gujarat Town Planning And Urban Development Act,

1976. On an inchoate right claimed under the Agreement to Sell of 1986,

in our opinion, the Appellants - Petitioners could not challenge such

action on the part of the concerned Municipal Corporation or Urban

Development Authority to take the land in question for the larger public

interest of widening of the Road in question.

11. The contention of learned counsel for the Appellants - Petitioners

on the basis of Receipts of Rs.10,000/- paid as Application Fees for

regularization of their construction to the Urban Development Authority,

is absolutely misconceived, as despite our question, the learned counsel

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

for the Appellants - Petitioners could not bring to our notice any

regularization / order passed by any Competent Authority on the basis of

such Application Fees of Rs.10,000/- might have been paid by the

Appellants - Petitioners. Therefore, nothing turns on the said

Documents / Receipts of Rs.10,000/-. Neither the said Vendor of the

Agreement to Sell of 1986 nor the purchaser under the Registered Sale

Deed of 2012, which are said to be subject matter of the aforesaid Civil

Suit filed by the Appellants - Petitioners, have been made a party in the

present litigation for the reasons best known to the Appellants -

Petitioners. If at all, any consideration on the facts of the case was to be

made, these parties were necessary or proper parties to be arraigned

before this Court as well. Keeping them in dark and claiming their rights

over the land in question, renders or makes the Appellants - Petitioners

approaching this Court without disclosing the complete and true facts and

that dis-entitles them to any equitable relief under jurisdiction of Article

226 of the Constitution of India. This is notwithstanding the legal

position being clear that such respective civil right cannot be adjudicated

in writ jurisdiction at all and therefore, it is only appropriate for the

Appellants - Petitioners to establish their rights whatever they are in the

Trial Court.

12. As far as the action against the public bodies or authorities is

C/LPA/1640/2017 JUDGMENTDT.05.02.2021 ARISHBHAI TAPUBHAI SHEKHAVA & 4 OTHERS VS. AHMEDABAD MUNICIPAL CORPORATION & 2 ORS.

concerned, we do not find any illegality or malafide exercise of powers

on the part of the respondent authorities qua the present Appellants -

Petitioners, and therefore we do not find any error in the rejection of Writ

Petition by the learned Single Judge. Therefore, we are of the considered

opinion that the present intra-Court Appeal has no merit. The same

deserves to be dismissed and is accordingly dismissed. No order as to

costs.

13. Learned counsel for the Appellants - Petitioners, after the dictation

of this order in the Court itself after hearing, made a request for staying of

the operation of this order for some time and also made a request that the

observations made may not affect the Civil Suit. Both the requests are

misplaced and cannot be acceded to. The same are turned down. The

Trial Court has to proceed for trial in accordance with law.

(DR. VINEET KOTHARI, J.)

(GITA GOPI, J.) Pankaj