Pooja Auto Parts vs State Of Gujarat
2021 Latest Caselaw 3268 Guj

          C/SCA/14607/2011                                          ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 14607 of 2011

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                        POOJA AUTO PARTS & 1 other(s)
                                  Versus
                        STATE OF GUJARAT & 5 other(s)
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Appearance:
MR DAVE FOR MR BM MANGUKIYA(437) for the Petitioner(s) No. 1,2
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1,2
MR K.M.ANTANI, AGP for the Respondent(s) No. 1
M/S RJ RAWAL ASSOC.(1987) for the Respondent(s) No. 3
MR RD DAVE(264) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 4,5,6
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 25/02/2021

                                ORAL ORDER

Heard learned Assistant Government Pleader Mr.K.M.Antani for the respondent­State through video conference.

1. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs :

"(A) Be pleased to admit and allow this petition:

(B) Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus and to hold and declare that the respondents have no authority,­ power or competence to take away the property of the petitioners without giving Final Plot in lieu of the original plot and, therefore, the action of the respondents is ultra vires to the provisions of the Act;

C/SCA/14607/2011 ORDER

(C) Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus and to direct the respondents to give appropriate Final Plots in the same survey number having the same commercial potentiality in lieu of their original plot;

(D) Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus and direct the respondents not to carry out any work on the premises of the petitioners which have been forcefully taken away from the petitioners until the respondents give a final plot in lieu of their original plots.

(E) Pending hearing and final disposal of this petition, be pleased to direct the respondents to place on record what Final Plot the respondents propose to give to the petitioners in lieu of their original plots;

(F) Pending hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain the respondents, their agents and servants from occupying the original plots of the petitioners until the Final Plot of having same commercial potentiality are allotted to the petitioners;

(G) Be pleased to pass such other and further reliefs, as the nature and circumstances of the present case may require; "

2. The grievance raised in this petition pertains to the allotment of final plot to the petitioners in the draft town planning scheme and without giving the possession of the final plots to the petitioners the possession of the property of the petitioners should not be taken by the respondents.

3. It is not in dispute that the town planning scheme No.51, Ahmedabad was sanctioned by the State Government under Section 65 of the Gujarat Town Planning and Urban Development Act, 1976 (for short 'the Act, 1976') and pursuant there to the Ahmedabad Municipal Commissioner issued notice under Section 68 of the Act, 1976 read with Rule 33 of the Gujarat Town Planning and Urban Development Rules, 1979 (for short 'the Rule, 1979') in the year 2006. After the draft town planing scheme was

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sanctioned by the State Government, the Town Planning Officer was appointed and the town planning scheme No.51 (Khokhra), Mhemdabad­East was published. There were civil proceedings initiated by the petitioners against the Ahmedabad Municipal Corporation challenging the aforesaid notices issued in the year 2006, however, notices of motion applications were rejected in the year 2010 in Civil Suit No.47 of 2007 and Civil Suit No.53 of 2007 as the same were not maintainable. The petitioners thereafter preferred the Appeal from Order No.247 of 2007 and Appeal from Order No. 248 of 2007 which were dismissed by this Court (Coram : Hon'ble Mr.Justice Anant S. Dave as he was then) vide judgment and order dated 3rd August, 2010. The petitioners have therefore filed this petition.

4. It is not in dispute that the respondent­Corporation issued notice under Section 68 of the Act, 1976 and Rule 33 of the Rules, 1979 pursuant to the sanctioned town planning scheme. Therefore, this petition is not maintainable. Moreover, the Deputy Estate Officer of the Municipal Corporation has filed an affidavit on 27th June, 2012 wherein, following averments are made :

"2. The Answering Respondent being an implementing authority states that Final Plot no. 88 (Original Plot no. 52/2) is already alotted to its Original owner Shri Becharbhai Balabhai Bajania as per "F" form and final award and had removed super structure existed on 12.0 mtr T.P. Road in question for implementation of T P Scheme no. 51(Khokhra ~Mehmdavad). A copy of the map showing superstructure removed by the corporation as well as some of the photographs are annexed hereto and marked as ANNEXURE ~ "R1",

3. The Answering Respondent states that as provided under section 68 of the T. P. Act, 1976, the eviction proceedings have been done by the corporation for implementing the TP Scheme in accordance with the procedure provided under the act.

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4. The Answering Respondent further states that earlier Civil Suit no. 47 of 2007 filed by the petitioner no. 2 for declaration and injunction contending that the plaintiff ( Petitioner no. 2) is the owner of suit premises situated at Ghodasar, near Cadila Bridge, Anmedabad. The Answering Respondent in the said Civil Suit was directed to consider the question of Compensation or to allot the area as claimed by the plaintiff as early as possible. The Answering Respondent further states that thereafter the petitioner no.2 filed another suit being Civil Suit no. 53 of 2007 and prayed for declaration and injunction inter­alia contending that the plaintiff ( Petitioner no. 2) is the owner of the suit premises situated at Ghodasar, near Cadila Bridge, Ahmedabad. The Ld. City Civil Court rejected the said suit on the principle of "resjudicata", however the earlier order was modified to the extent that question of compensation shall be decided by the concerned Town Planning Officer. Copies of the orders are annexed at page 96 and page no. 102 of the petitioner at Annexure K and Annexure L respectively.

5. The Answering Respondent further states and submits that the order passed below exhibit 54 dated 12.07.2010 and dated 16.04.2010 were challenged by the petitioners by way of group of Appeal from Order numbers 245 of 2010 to 248 of 2010. It is humbly submitted that this Hon'ble Court upon hearing the said petitions vide its order dated 03.08.2010 was pleased to reject the said petitions also (A.O.'s). Thus, there is NO question of compensation and allotment of plot remains with the petitioners and stands concluded by the dismissal of petitions.

6. The Answering Respondent further states that petitioners have filed present petition seeking appropriate writ, order or direction, directing Respondents to give appropriate final plots in the same survey numbers having the same commercial potentiality in lieu of their original plot.

7. The Answering Respondent states that the scope of giving appropriate final plots to the petitioners herein have already been dealt with by this Hon'ble Court in the Appeal from order no. 245 of 2010 to Appeal from Order no. 248 of 2010. Hence, the present petition would be operated as "resjudicata" and hence the same deserves to be dismissed and not maintainable. Moreover, the plot is question is already allotted handed over to the Original owner as above stated.

8. Since the petitioners could not obtain any relief in the civil Suits as well as Appeal from Orders, they have preferred present Petition and have tried to start second round of litigation on same grounds. "

5. In view of the aforesaid averments made in the affidavit­in­reply, the petition would not survive and is accordingly dismissed as the grievance raised in the petition is not in existence as the authority has already

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allotted the final plot No.88 as per Form "F" and has removed the super structure existed on 12.0 Mtr TP road in question with regard to the implementation of the town planning scheme No.51. Notice is discharged.

(BHARGAV D. KARIA, J) PALAK