Gujarat High Court
Shailesh Baldevbhai Patel vs State Of Gujarat on 24 February, 2021
Bench: Bhargav D. Karia
C/SCA/12416/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12416 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 12416 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 3944 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
SHAILESH BALDEVBHAI PATEL
Versus
STATE OF GUJARAT & 4 other(s)
==========================================================
Appearance:
Special Civil Application No. 12416/2018
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MS NIYATI B KATIRA(5095) for the Petitioner(s) No. 1
DHRUVIN P BHUPTANI(8295) for the Respondent(s) No. 4,5
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3
Special Civil Application No. 3944/2020
MR HM PARIKH, SENIOR ADVOCATE FOR MR DHRUVIN P
BHUPTANI(8295) for the Petitioner(s) No. 1,2
Page 1 of 21
Downloaded on : Fri Sep 03 18:19:24 IST 2021
C/SCA/12416/2018 JUDGMENT
MR KM ANTANI , AGP for the Respondent(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
MR SP MAJMUDAR(3456) for the Respondent(s) No. 3
MS NIYATI B KATIRA(5095) for the Respondent(s) No. 3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 24/02/2021
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr.H.M. Parikh
assisted by learned advocate Mr. Dhruvin P.
Bhuptani, learned advocate Mr.S.P. Majmudar,
learned advocate Mr.Satyam Chhaya and learned
Assistant Government Pleader Mr. K.M. Antani for
the respective parties through video conference.
2. Having regard to the controversy involved in
these petitions which is common and in a very
narrow compass, with the consent of the learned
advocates for the respective parties, the same
are taken up for hearing today and would be
disposed of by this common judgment.
3. Rule returnable forthwith. Learned advocates
appearing for the respective respondents in both
the petitions waives service of notice of rule.
4. Brief facts of these petitions are as under :
4.1) The land situated at Survey No.228/9
of village Motera, Ahmedabad, District Ahmedabad
C/SCA/12416/2018 JUDGMENT
(for short "the land in question") originally
belonged to late Maniben Fulabhai and on her
demise name of Sailesh Baldevbhai Patel along
with other legal heirs were mutated in the
revenue records.
4.2) On 10.09.2012, the preliminary Town
Planning Scheme No.21(Motera) was sanctioned
under section 65(1) of the Gujarat Town Planning
and Urban Development Act, 1976 (For short "the
Act 1976"). The land in question was given
comprising of land admeasuring 411 sq. mtrs
which was originally shown as land admeasuring
675 sq. mtrs. in the Draft Town Planning
Scheme No.21.
4.3) The Ahmedabad Municipal Corporation
(for short "the AMC") issued notices under
section 67 of the Act, 1976 for implementation
of the Preliminary Town Planning Scheme.
4.4) One Bharat Pruthvisinh Rajpurohit
along with M/s. Saga Infra Projects, a
partnership firm, preferred Special Civil
Application No.3901/2016 before this Court since
the Final Plot No.200 allotted to said person in
(Motera) was not allotted by the AMC after
coming into effect of the said Town Planning
Scheme. This Court (Coram : Hon'ble Mr. Justice
C/SCA/12416/2018 JUDGMENT
Mohinder Pal, as he was then) passed the
following order on 8.12.2016 :
"Grievance of the petitioner in this case
is that land was taken under the Town
Planning Scheme No.21 of Motera. However,
he has not been given final plot.
Corporation has come with reply that in
many other cases of this Town Planning
Scheme, discrepancies are found and these
are because of some procedural mistake in
the sketch drawn by the computer. Concerned
Authorities are directed to rectify these
mistake and thereafter, final plot be given
to the petitioner within a period of 4
(four) months from today. Both the
Corporation as well as State will be bound
by this order. Petition is disposed of
accordingly."
4.5) As the order passed by this Court
directing the AMC to allot Final Plot within a
period of four months was not complied with,
Misc. Civil Application No.1733/2017 was
preferred under the provisions of the Contempt
of Courts Act, 1971. It appears that during the
pendency of the contempt petition, the AMC and
State allotted and handed over the possession of
Final Plot No.200 to said persons who are the
petitioners of Special Civil Application
No.3944/2020 and respondent nos. 4 and 5 in
Special Civil Application No.12416/2018. In view
of the allotment of the land, the contempt
petition was disposed of by the Division Bench
(Coram : Hon'ble the Chief Justice Mr. R.
Subhash Reddy and Hon'ble Mr. Vipul M. Pancholi)
C/SCA/12416/2018 JUDGMENT
by order dated 6.8.2018 which reads as under :
"1. This Miscellaneous Civil Application is
filed under the provisions of the Contempt
of Courts Act, 1971, alleging that
respondents have violated the directions
issued by this Court in the order dated 8th
December, 2016 passed in Special Civil
Application No. 3901 of 2016.
2. When the matter is called, it is
represented by learned counsel for the
applicants that during pendency of this
application, the respondents have already
complied the directions, as such, the
applicants are not pressing this
application for adjudication on merits.
3. Learned counsel Mr. Majmudar, who has
filed the application for joining as party
respondent, has submitted that his client
is not made party in Special Civil
Application or this Miscellaneous Civil
Application and questioning the very same
scheme itself, he has already filed
substantive petition before the learned
single Judge.
4. As much as the applicant is not
interested to pursue the Civil Application
and further, the respondent authority has
complied the directions issued by this
Court, we are of the view that this is not
a fit case to proceed further attracting
the provisions of the Contempt of Courts
Act, 1971. Accordingly, Miscellaneous Civil
Application is closed. As much as the
Miscellaneous Civil Application is disposed
of as not pressed, Civil Application No.1
of 2018 will not survive. However, if any
substantive petition is filed by the
applicant of Civil Application No.1 of
2018, same has to be considered on its own
merits uninfluenced by this order. As it is
reported that the applicant in
C/SCA/12416/2018 JUDGMENT
Miscellaneous Civil Application is already
made partyrespondent in the petition filed
by the applicant of Civil Application No.1
of 2018, it is made clear that rights of
all the parties are left open to be
adjudicated on merits."
4.6) It appears that there was an error in
the preliminary Town Planning Scheme and
therefore, AMC passed resolutions dated
16.3.2018 and 27.3.2018 whereby it was decided
to vary the preliminary Town Planning Scheme as
per the provisions of section 71 of the Act,
1976.
4.7) Sailesh Baldevbhai Patel also applied
to be joined as party respondent in the contempt
proceedings. However, in view of observations
made by this Court, Special Civil Application
No. 12416/2018 was preferred with the following
prayers :
"(A) Your Lordships may be pleased to issue
a writ of mandamus or a writ in the nature
of mandamus or any other appropriate writ,
order or directions quashing and setting
aside Resolutions dated 16.03.2018 and
27.03.2018 of the respondentcorporation
(at ANNEXUREE (colly.) hereto) for
variation of the TOWN planning scheme No.21
(Motera) for the land in question of the
petitioner and further be pleased to quash
and set aside the order dated 24.05.2018
passed by the respondentcorporation (at
ANNEXUREM hereto) and also be pleased to
quash and set aside the possession receipt
dated 30.07.2018 issued by the respondent
corporation handing over possession of the
C/SCA/12416/2018 JUDGMENT
in question of the petitioner (at ANNEXURE
O) hereto);
(B) YOUR LORDSHIPS may be pleased to issue
a writ of mandamus or a writ in the nature
of mandamus or any other appropriate
writ,order or direction quashing and
setting aside notification dated 10.09.2012
issued by the state Government (at
ANNEXUREJ hereto) sanctioning the
preliminary scheme for the land in question
of the petitioner and also future be
pleased to quash and set aside notice dated
01.05.2018 issued by respondent
corporation( at ANNEXUREF hereto);
(c) Your Lordships may be pleased to issue
a writ of mandamus or a writ in the nature
of mandamus or any other appropriate writ,
order or directions directing the State
Government not to sanction the proposed
variation as suggested by the respondent -
corporation in the impugned Resolutions
dated 16.03.2018 and 27.03.2018 of the
respondent corporation (at ANNEXUREE
(colly.) hereto) and further be pleased to
return the possession of the land in
question to the land in question to the
petitioner forthwith;
(D) During pendency and final disposal of
the present application,Your Lordships may
be pleased to :
(i) stay further operation, implementation
and execution of Resolutions dated 16.03
2018 and 27.03.2018 of the respondent
corporation (at ANNEXUREE (colly.)
hereto), order dated 24.05.2018 passed by
the respondentcorporation (at ANNEXUREM
hereto), notice dated 01.05.2018 issued by
the respondentcorporation(at ANNEXUREF
hereto);
(ii) direct all the respondents to
maintain statusquo with respect to the
C/SCA/12416/2018 JUDGMENT
land in question;
(iii) direct the State Government not to
sanction the variation proposed by the
respondentcorporation in resolutions dated
16.03.2018 and 27.03.2018 of the
respondent corporation(at ANNEXUREE
(colly.)hereto;
(E) Pass any such other and/ or further
orders that may be thought just and proper,
in the facts and circumstances of the
present case;"
4.8) It was contended by the petitioner in
Special Civil Application No.12416/2018 that
while approving the variation in the sanctioned
Preliminary Scheme, no procedure as contemplated
in the Act, 1976 was followed by AMC and without
issuing any notice inviting the objections for
proposed variation in the preliminary scheme,
resulted into violation of principles of natural
justice.
4.9) It was therefore, contended that
resolutions dated 16.3.2018 and 27.3.2018 are
required to be quashed and set aside. The
petitioner of Special Civil Application
No.12416/2018 therefore, consequentially prayed
for quashing and setting aside eviction notice
dated 1.5.2018 which was sought to be issued
pursuant to the contempt proceedings on the
ground that though the variation in the
preliminary scheme was not yet sanctioned, the
same was sought to be implemented by the AMC.
C/SCA/12416/2018 JUDGMENT
4.10) The AMC carried out demolition of premises
of Sailesh Baldevbhai Patel on 30.7.2018 without
considering the objections raised on 9.7.2018 in
pursuance to the notice dated 1.5.2018. The
petitioner of Special Civil Application No.
3944/2020 preferred an application for
sanctioning of development permission which was
rejected by the AMC vide order dated 15.10.2019
in view of pendency of Special Civil Application
No.12416/2018 before this Court.
4.11) In view of above facts, both these
petitions are heard together and are disposed of
by this common judgment.
5. Learned advocate Mr. Majmudar submitted that the
petitioner of Special Civil Application No.
12416/2018 have challenged the resolutions dated
16.3.2018 and 27.3.2018 passed by the AMC on
the ground that AMC could not have given consent
for implementation of the proposed variation
scheme without the sanction of the State
Government. Insofar as prayer for quashing and
setting aside order dated 24.5.2018 is
concerned, learned advocate Mr. Majmudar
submitted that the Assistant Estate Officer has
not given any reason to reject the objections
raised pursuant to the notice issued under
section 68 of the Act, 1976 read with Rule 33 of
C/SCA/12416/2018 JUDGMENT
the Gujarat Town Planning and Urban Development
Rules, 1979 (For short "the Rules, 1979") and
therefore, the impugned order is liable to be
quashed and set aside.
6. With regard to the challenge to the possession
receipt dated 30.7.2018 by which the AMC handed
over the land of Final Plot No.200 Original Plot
No. 199 to respondent nos.4 and 5 of Special
Civil Application No. 12416/2018 is concerned,
it was submitted that as per the order passed by
this Court in Special Civil Application No.3901
of 2016, the Corporation has made correction of
error in the sanctioned Preliminary Town
Planning Scheme No. 21(Motera) but such varied
scheme is not yet sanctioned by the State
Government under section 65 of the Act, 1976. It
was therefore, submitted that till such varied
scheme is sanctioned by the State Government,
the AMC could not have passed the impugned
resolutions dated 16.3.2018 and 27.3.2018 to
implement such scheme which is not yet
sanctioned by handing over the land of Final
Plot No.200 to respondent nos. 4 and 5.
7. On the other hand, learned advocate Mr. Chhaya
appearing for AMC submitted that this is a
peculiar case in which the AMC has handed over
the possession of the land in question to
respondent nos. 4 and 5 of Special Civil
Application No. 12416/2018 due to Contempt of
C/SCA/12416/2018 JUDGMENT
Court proceedings for implementation of the
order passed in Special Civil Application No.
3901 of 2016. He relied upon the following
averments made in the affidavit in reply filed
on behalf of AMC in the contempt proceedings
which is produced along with the affidavit filed
on behalf of respondent no.3 AMC in the
present proceedings :
"(6) It is submitted that if we go by
rules of books i.e if we go by strictly in
accordance with the Act,1976 wherein the
sanctioned preliminary Town Planning Scheme
is suffered from such grave mistake it
cannot be varied under section 70 but the
same is required to be varied only under
section 71 that too after finalization of
the Final Town Planning Scheme. The final
Town Planning Scheme is still under
finalization process which may take more
time. However, looking to peculiar facts of
the case and in view of the order passed by
this Hon'ble court dated 08.12.2016 the
Answering Corporation has principally
decided to identify all the errors as soon
as possible and thereby the Answering
Corporation would submit a proposal after
following due procedure of law by taking
approval of the Town Planning Committee and
General Board so that proposed varied TP
scheme can be submitted even at this stage
by taking departure from the strict book of
rules to execute/implement the scheme as
soon as possible."
8. It was therefore, submitted by learned advocate
Shri Chhaya that AMC has therefore, not granted
development permission to respondent nos. 4 and
5 of Special Civil Application No. 12416/2018
C/SCA/12416/2018 JUDGMENT
and the petitioner of Special Civil Application
No.3944/2020 in view of pendency of this
petition as variation scheme is not yet
sanctioned by the State Government.
9. Learned Senior Advocate Mr. H.M. Parikh
appearing for respondent nos. 4 and 5 in Special
Civil Application No. 12416/2018 and for the
petitioner in Special Civil Application
No.3944/2020 submitted that this Court in
Special Civil Application No. 3901 of 2016
directed the AMC to rectify the mistakes in the
preliminary Town Planning Scheme and thereafter,
Final Plot be given to respondent nos. 4 and 5
within a period of four months from the date of
the order dated 8.12.2016 and as the AMC did not
comply with the order passed by this Court,
contempt petition was filed being Misc. Civil
Application No. 1733 of 2017. It was submitted
that during the pendency of the contempt
proceedings, it was represented on behalf of
respondent nos. 4 and 5 that the AMC has already
complied with the directions. However, it is not
stated before the Division Bench as to in what
manner the directions issued by this Court was
complied with by the AMC and only on the
statement made by learned advocate for
respondent nos. 4 and 5, the contempt
application was disposed of. It appears that as
contended by learned advocate Mr. Chhaya a
detailed affidavit was filed in the contempt
C/SCA/12416/2018 JUDGMENT
proceedings which was taken into consideration
by the Court and the contempt proceedings were
disposed of and in view of the contempt
proceedings, the AMC handed over the possession
of Final Plot No. 200 to respondent nos. 4 and 5
subject to sanction of varied scheme by the
State Government.
10. Learned Senior Advocate Mr. Parikh submitted
that Special Civil Application No.12416/2018 is
not maintainable as the petitioner of the said
petition had earlier preferred Special Civil
Application No.10558/2018 and during the
pendency of the said petition, this petition is
filed and after filing this petition, the
petitioner withdrew Special Civil Application
No. 10558/2018 with the permission of the Court.
It was further submitted that the petitioner
could not have preferred second petition during
the pendency of the earlier petition under
Article 226 of the Constitution of India as no
permission was sought from the Court to file
fresh petition at the relevant point of time. In
support of this contention reliance was placed
upon the decision of the Apex Court in case of
Sarguja Transport Service v. State Transport
Appellate Tribunal, Gwalior and others reported
in AIR 1987 Supreme Court 88, wherein it is held
as under :
"7. The Code as it now stands thus makes a
C/SCA/12416/2018 JUDGMENT
distinction between 'abandonment' of a suit
and 'withdrawal' from a suit with
permission to file a fresh suit. It
provides that where the plaintiff abandons
a suit or withdraws from a suit without the
permission, referred to in subrule (3) of
rule 1 of Order XXIII of the Code, he shall
be precluded from instituting any fresh
suit in respect of such subjectmatter or
such part of the claim. The principle
underlying rule 1 of Order XXIII of the
Code is that when a plaintiff once
institutes a suit in a Court and thereby
avails of a remedy given to him under law,
he cannot be permitted to institute a fresh
suit in respect of the same subjectmatter
again after abandoning the earlier suit or
by withdrawing it without the permission of
the Court to file fresh suit. Invito
benificium non datur. The law confers upon
a man no rights or benefits which he does
not desire. Whoever waives, abandons or
disclaims a right will loose it. In order
to prevent a litigant from abusing the
process of the Court by instituting suits
again and again on the same cause of action
without any good reason the Code insists
that he should obtain the permission of the
Court to file a fresh suit after
establishing either of the two grounds
mentioned in subrule (3) of rule 1 of
Order XXIII. The principle underlying the
above rule is rounded on public policy, but
it is not the same as the rule of res
judicata contained in section 11 of the
Code which provides that no court shall try
any suit or issue in which the matter
directly or sub stantially in issue has
been directly or substantially in issue in
a former suit between the same parties, or
between parties under whom they or any of
them claim, litigating under the same
title, in a Court competent to try such
subsequent suit or the suit in which such
issue has been subsequently raised, and has
been heard and finally decided by such
C/SCA/12416/2018 JUDGMENT
Court. The rule of res judicata 207 applies
to a case where the suit or an issue has
already been heard and finally decided by a
Court. In the case of abandonment or
withdrawal of a suit without the permission
of the Court to file a fresh suit, there is
no prior adjudi cation of a suit. or an
issue is involved, yet the Code provides,
as stated earlier, that a second suit will
not lie in subrule (4) of rule 1 of Order
XXIII of the Code when the first suit is
withdrawn without the permission referred
to in subrule (3) in order to prevent the
abuse of the process of the Court.
xxx
9. The point for consideration is whether a
petitioner after withdrawing a writ
petition filed by him in the High Court
under Article 226 of the Constitution of India
without the permission to institute a 208
fresh petition can file a fresh writ
petition in the High Court under that
Article. On this point the decision in
Daryao's case (supra) is of no assistance.
But we are of the view that the principle
underlying rule 1 of Order XXIII of the
Code should be extended in the interests of
administra tion of justice to cases of
withdrawal of writ petition also, not on
the ground of res judicata but on the
ground of public policy as explained above.
It would also discourage the litigant from
indulging in benchhunting tactics. In any
event there is no justifiable reason in
such a case to permit a petitioner to
invoke the extraordinary jurisdiction of
the High Court under Article 226 of the
Constitution once again. While the
withdrawal of a writ petition filed in a
High Court without permission to file a
fresh writ petition may not bar other
remedies like a suit or a petition under
Article 32 of the Constitution of India since
such withdraw al does not amount to res
C/SCA/12416/2018 JUDGMENT
judicata, the remedy under Article 226 of the
Constitution of India should be deemed to
have been abandoned by the petitioner in
respect of the cause of action relied on in
the writ petition when he withdraws it
without such permission. In the instant
case the High Court was fight in holding
that a fresh writ petition was not
maintainable before it in respect of the
same subjectmatter since the earlier writ
petition had been withdrawn without
permission to file a fresh petition. We,
however. make it clear that whatever we
have stated in this order may not be
considered as being applicable to a writ
petition involving the personal liberty of
an individual in which the petition er
prays for the issue of a writ in the nature
of habeas corpus or seeks to enforce the
fundamental fight guaranteed under Article 21
of the Constitution since such a case
stands on a different footing altogether.
We however leave this question open."
11. Learned Senior Advocate Mr. Parikh also relied
upon the decision of Allahabad High Court in
case of M/s. Sanjay Paper and Chemical
Industries Ltd. v. Dist. Judge, Gorakpur and
Others reported in AIR 2006 Allahabad 106 to
submit that withdrawal of second suit filed
during the pendency of earlier suit and if
earlier suit is withdrawn thereafter, then it
would be contrary to Rule 1 Order 23 of the Code
of Civil Procedure resulting into abuse of
process of Court by filing the second suit for
the same cause of action.
12. It was therefore, submitted by learned
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Senior Advocate Mr. Parikh that Special Civil
Application No.12416/2018 is required to be
dismissed at the threshold without entering into
the merits of the matter.
13. Having considered the rival submissions and
having gone through the materials on record, it
emerges that there were errors committed by the
appropriate authority while forwarding the
Preliminary Town Planning Scheme for sanction
before the State Government.
14. It appears that thereafter as the
appropriate authority did not comply with the
order dated 8.12.2016 passed in Special Civil
Application No.3901/2016, respondent nos.4 and 5
of Special Civil Application No.12416/2018
preferred Misc. Civil Application No. 1733 of
2017 under the provisions of the Contempt of
Courts Act, 1971 as the appropriate authority
was directed to rectify the mistake and allot
the Final Plot to respondent nos. 4 and 5 within
four months from the date of order. As stated
hereinabove the appropriate authority filed a
detailed affidavit in the contempt proceedings
stating that as per the provisions of Act, 1976
the appropriate authority is required to
implement varied scheme after sanction of such
scheme only. However, in peculiar facts of the
case and in view of the order passed by this
Court on 8.12.2016, it was decided by the
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respondent authority to identify all the errors
and to submit the proposal after following due
process of law by taking approval of the Town
Planning Committee so as to submit varied TP
Scheme for sanction. As such procedure would
take time, AMC implemented the proposed varied
scheme so far as respondent nos. 4 and 5 is
concerned.
15. In view of such undisputed facts, when the
variation which is proposed by the appropriate
authority i.e. respondent no.3 AMC as per
section 71 of the Act 1976 is not yet sanctioned
by the State Government under section 65 of the
Act, 1976, the AMC could not have handed over
the possession in any circumstances to
respondent nos. 4 and 5 with regard to Final
Plot No. 200 as per the proposed varied scheme
which was prepared by the AMC pursuant to the
order passed by this Court in Special Civil
Application No. 3901 of 2016.
16. Therefore, the action of the AMC is contrary
to the provisions of the Act, 1976 to handover
possession of Final Plot no. 200 without getting
sanction of varied TP Scheme unless and until
the Preliminary Scheme or varied scheme is
sanctioned under section 65 of the Act, 1976,
the same could not have been implemented by
passing resolutions on 16.3.2018 and 27.3.2018
and relying upon such resolution, possession of
C/SCA/12416/2018 JUDGMENT
the Plot No.200 could not have been handed over
to respondent nos. 4 and 5. At the same time,
the petitioner of Special Civil Application
No.12416/2018 is also required to comply with
the order dated 24.5.2018 by handing over the
possession of the land which is continued to be
held contrary to the sanctioned preliminary
scheme.
17. In view of the foregoing reasons, the
Special Civil Application No.12416/2018 is
partly allowed. The impugned resolutions dated
16.3.2018 and 27.3.2018 are hereby quashed and
set aside as the same are contrary to the
provisions of sections 65, 67 and 68 of the Act,
1976. The possession handed over by the AMC to
respondent nos. 4 and 5 of Special Civil
Application No. 12416/2018 is required to be
restored as such possession could be given only
after varied scheme either under section 70 or
section 71 is sanctioned by the State Government
and at the same time, the petitioner of Special
Civil Application No. 12416/2018 is directed to
comply with the order dated 24.5.2018 passed by
AMC within four weeks from the date of receipt
of this order and hence, so far as prayer (B) of
Special Civil Application No. 12416/2018 is
concerned, the same is not granted as the
sanctioned preliminary scheme is required to be
implemented by the authority and as far as
prayer (C) is concerned, the same will not
C/SCA/12416/2018 JUDGMENT
survive.
18. Special Civil Application No.12416/2018 is
accordingly partly allowed. Rule is made
absolute to the aforesaid extent with no order
as to costs.
19. Insofar as Special Civil Application No.
3944/2020 is concerned, the petitioners of the
said petition are aggrieved because AMC has
denied granting development permission in view
of the pendency of Special Civil Application
No.12416/2018. However, as Special Civil
Application No. 12416/2018 is now partly allowed
and the possession of Final Plot No.200 is
ordered to be restored to its original plot
holders from the respondent nos. 4 and 5 of
Special Civil Application No.12416/2018 and
petitioners of Special Civil Application
No.3944/2020, Special Civil Application No.
3944/2020 has become infructuous and is
accordingly disposed of.
20. In view of this order, no order is required to
be passed in Civil Application. Civil
Application stands disposed of accordingly.
21. At this stage learned Senior Advocate Mr.
H.M. Parikh requests for stay of the execution
and implementation of this order as respondent
nos. 4 and 5 are already in possession of the
C/SCA/12416/2018 JUDGMENT
land handed over by the AMC pursuant to the
possession receipt dated 30.7.2018.
22. However as the possession handed over to
respondent nos. 4 and 5 is contrary to the
provisions of Act, 1976, the request for grant of
stay of this order is rejected.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
