Bhikhaji Somaji Thakor Through ... vs State Of Gujarat
2021 Latest Caselaw 17507 Guj

     C/SCA/12516/2019                             JUDGMENT DATED: 22/11/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12516 of 2019


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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 ?

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       BHIKHAJI SOMAJI THAKOR THROUGH BHALABHAI B THAKOR
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR BOMI H SETHNA(5864) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,58,59,6,60,61,7,8,9
MR MEET THAKKAR, AGP (99) for the Respondent(s) No. 1
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2,3
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 22/11/2021

                             ORAL JUDGMENT

1. RULE, returnable forthwith. Mr. Meet M.

Thakkar, learned Assistant Government Pleader waives

service of Rule for respondent No.1, while Mr. Anuj K.

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

Trivedi, learned advocate waives service of Rule for

respondent Nos.2 and 3.

2. With the consent of the learned advocates

appearing for the respective parties, this matter is taken

up for hearing today.

3. Heard learned counsel for the respective parties

and perused the record.

4. In this petition, under Article 226 of the

Constitution of India, the petitioners have prayed for the

following reliefs:

"(A) YOUR LORDSHIPS be pleased to issue a Writ of Mandamus or a Writ of Mandamus or a Writ in the Nature of Mandamus or any other Writ, order or direction, directing the respondent authorities i.e. the respondent No.2 and 3 to construct and allot the residential premises in favour of the petitioners, in the premises where the petitioners are residing, instead of allotting them the premises in TP Scheme No.44 (Chandkheda), Final Plot No.224, Rajiv Gandhi Avas Yojna, on any reasonable conditions as may deem fit in the interest of justice;

(B) YOUR LORDSHIPS be pleased to issue a Writ of Mandamus or a Writ of Mandamus or a Writ in the nature of Mandamus or any other Writ, Order of Direction, directing the respondent authorities i.e. the respondent No.2 and 3 to provide an accommodation to the petitioners in the nearby area i.e. Prime Ministers Avas Yojna, Ramapir No Tekro (Section 5) Old Wadaj, Ahmedabad."

5. The facts in brief are as under:

5.1. It is the case of the petitioners that they

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

are residing with their families at Town Planning

Scheme No.28 (Nava Wadaj), Final Plot No.536,

near the Community Hall, Wadaj Circle, Ahmedabad

for the last more than 50 years. With a view to

rehabilitate the slum dwellers under the Regulation

for the Rehabilitation and Redevelopment of the

Slums, 2010 and under Chief Ministers Gujarat

Rural Urban, local authorities had to identify the

slum pockets and start development and rehabilitate

such slum dwellers. Under challenge is the notice

dated 1.6.2019 issued to the petitioners by the

Ahmedabad Municipal Corporation. Reading the

notice would indicate that Final Plot No.536 of TP

No.28 (Nava Wadaj) is reserved for community hall.

Alternative accommodation was made available to

the petitioners earlier at Vasna Shahwadi Aavas

Yojna, thereafter, it was changed to Aavas near

Jupiter Mill which was for administrative reasons

suspended. The notice further indicates that hence

now the petitioners are offered alternative

accommodation at TP No.44 (Chandkheda), Final

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

Plot No.224, Rajiv Aavas Yojna and, thereafter asked

to remain present to lodge their entitlement. It is in

this context, the prayers are so made.

6. Mr. Bomi H. Sethna, learned counsel for the

petitioners would indicate that vide that vide a resolution

dated 18.7.2013, it was incumbent upon the respondent -

Corporation to allot residential premises in situ. It is

submitted that it was a special policy framed for

rehabilitating the slum dwellers. He would submit that

initially the petitioners were offered accommodation at

Vasna Shahwadi Aavas Yojna on 10.7.2014 which was

subsequently cancelled. Thereafter, they were allotted

accommodation on 9.5.2016 at Jupiter Mill, which

allotment was cancelled on 25.2.2016. Now, by the

impugned notice, they have been offered accommodation

at Chandkheda, which is in violation of the in situ

rehabilitation policy. He would further submit that at

Ramapir Na Tekra close to the slums of the petitioners,

there are 8,000 houses to be still constructed, which

should be allotted to the petitioners. As far as the

reservation made to the community hall is concerned, Mr.

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

Sethna would invite the attention of the Court to the

photograph on page No.125 to submit that a community

hall already exists within the distance of half kilometer.

Mr. Sethna would invite the attention to the affidavit in

reply filed by the petitioners to submit that several slum

dwellers in Wadaj area have been allotted

accommodation and rehabilitated at (a) Hala Nagar, Juna

Vadaj, (b) Subhash Nagar, Juna Vadaj, (c) RR Shukal ni

Chali, Juna Vadaj, (d) Jhaveri Park Nat Na Chapra, Juna

Vadaj, (e) Rohitdas Nagar, Juna Vadaj, (f) Dudhnath

Mahadev, Juna Vadaj, (g) Juna Vadaj Circle and the

petitioners therefore ought to be given the same

treatment of in situ rehabilitation.

7. Mr. Anuj K. Trivedi, learned counsel for the

respondents would invite the attention of the Court to the

notice and submit that TP Scheme No.28 has become part

of the Final Scheme and, therefore, part of the Act. Final

Plot No.536 has been reserved for community hall and,

therefore, the Court cannot accept a challenge to the plot

under the Town Planning Scheme which has become

final. He would further invite the attention of the Court to

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the CAV Judgment dated 22.8.2007 passed in Special

Civil Application No.8810 of 2007 and allied matter of the

Division Bench, wherein the Division Bench of this Court,

in the submission of Mr. Trivedi, held that the petitioners

were encroachers. He would therefore submit that the

policy of 18.7.2013 would not be available to the

petitioners.

8. Inviting the attention of the Court to the affidavit

in reply on behalf of the respondent No.2, a tabular form

has been given by the deponent submitting that the

petition has become infructuous by virtue of the figures

reflected in the table which read as under:

accommodation

consequently handed over the premises to the respondent No.2 and the same has been demolished

are residing at the alternative residential premises

alternative accommodation, however, have

to take possession of the alternative residential premises

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

possession of their premises nor have taken possession of the alternative residential premises.

9. Inviting the attention of the Court to the affidavit,

he would submit that the very same petitioners had

preferred Special Civil Application Nos.8810, 8811, 8859

and 14564 of 2007 which were dismissed. He would

submit that in the years 2012-13, Jawaharlal Nehru

Urban Renewal Mission was formed pursuant to which a

draw was held on 14.2.2014, wherein, 129 persons

residing on the subject land were selected for allotment

of plots at EWS Aavas Yojna at Vasna and Vatva. As far as

Final Plot Nos.572, 573 and 574 at Vadaj, Ahmedabad of

the TP Scheme No.28 are concerned, they are reserved

for the purposes of burial ground and garden. Since the

occupants of those final plots were removed, they were

provided alternative accommodation at Final Plot

Nos.113 and 114. Some of the persons residing at Final

Plot Nos.572, 573 and 547 at Vadaj had filed Special Civil

Application Nos.14552 of 2014 and 2117 of 2015 which

came to be disposed off by the orders of 19.11.2014 and

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

4.2.2015. Pursuant to the order of 4.2.2015, the

occupants of those survey numbers were to be given

allotment and, therefore, the allotment made initially in

favour of the petitioners were cancelled as the direction

was so issued by this Court. Reading the affidavit-in-reply,

Mr. Trivedi would further contend that the houses to be

constructed at the Ramapir Na Tekra would have been

allotted to in situ persons of the Ramapir Na Tekra and

once the petitioners have had a tag of encroachers, they

have no right to a particular place and allotment of

Chandkheda needs to be accepted.

10. Considering the submissions of the learned

advocates for the respective parties, the following

undisputed question of fact would persuade the Court to

accept the submissions made by the learned counsel for

the Corporation.

10.1. Though Mr. Sethna would contend that

the tag of encroachers cannot continue to operate

even after the order of this Court in the year 2007,

the fact remains that reading the order of the

Division Bench indicates that as far as in the year

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

2007 itself it was the stand of the Corporation that

Final Plot No.536 - TP Scheme No.28 (Nava Wadaj)

was reserved for the community hall under the TP

Scheme which had become final after having been

sanctioned on 5.3.1982. Having been so sanctioned

and become a part of the Act, the same was not a

subject-matter that could be gone into by this Court

in a petition under Article 226 of the Constitution of

India.

10.2. The land i.e. Final Plot No.536 by virtue of

Scheme is vested in the Corporation free from all

encumbrances. Pursuant to the notices given, only

few persons have applied. What is also evident from

the order of the Division Bench that the petitioners

were held as encroachers who had occupied the land

only after the year 1986. The Division Bench of this

Court in the order dated 22.8.2007 passed in Special

Civil Application Nos.8810 of 2007 and allied matter

held as under:

"9. After having heard learned advocates appearing for the respective parties and after having gone through the memo of petitions, affidavit-in-reply, rejoinder affidavit and the

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

documents produced before the Court, it appears to us that the petitioners have mainly challenged the notices issued by the respondent Corporation on 26.03.2007 in Special Civil Application No. 8810 of 2007 and notices dated 25.05.2007 in Special Civil Application No. 14564 of 2007. Despite the fact that several opportunities were given to the petitioners, they were not in a position to establish their ownership rights over the properties nor they were in a position to produce any title to the properties. The petitioners are, therefore, considered to be encroachers. Even then the respondent Corporation has made it very clear in the reply that if there was any document in possession of the petitioners showing that they have been staying at their present premises prior to 1976, in that case as per the Scheme framed by the Corporation, they are providing alternative accommodation to them. The documentary evidences which are produced before the Corporation by some of the petitioners showing their stay prior to 1976 were under the scrutiny of the Corporation and it was admitted before the Court in the reply that those persons will be given alternative accommodation. In view of the stand taken by the Corporation in the affidavit-in-reply, nothing further is required to be done in the present petitions.

10. As far as legal submissions made by Mr. Oza with regard to the challenge to the vires of the Town Planning Scheme being violative of the constitutional provisions contained in Section 243 ZE of the Constitution of India, we have already discussed at length this issue in our judgment and order of even date passed in Special Civil Application No. 24715 of 2006 and for the reasons recorded therein, we are of the view that the Town Planning Scheme sought to be implemented by the respondents pursuant

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to the development plan is not ultravires the Constitution.

11. We, therefore, do not find any substance or merits in any of these two petitions. Both these petitions are accordingly dismissed. Notice discharged. Interim relief granted earlier stands vacated."

10.3. As far as the entitlement of the petitioners

for in situ rehabilitation is concerned, in view of the

fact that the petitioners are occupying such land and

are encroachers, no right by virtue of the GR dated

18.7.2013 could be available to the petitioners.

10.4. As far as the contention of Mr. Sethna that

earlier allotments were cancelled though were made

at Vasna Shahwadi Aavas Yojna, thereafter, it was

changed to Aavas near Jupiter Mill, reading of the

order of this Court dated 4.2.2015 would indicate

that right would not have been suspended and in

situ allotment was to be done to the allottees of the

Final Plot Nos.572, 573 and 574 respectively. The

petitioners being encroachers could not therefore

claim priority of being allotted accommodation by

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

virtue of rehabilitation at the place they are

occupying the land which they were without any

right.

11. As far as argument of Mr. Sethna with regard to

the Ramapir No Tekro allotment is concerned or

prioritizing their right via-a-vis in situ holders or

residents of that Tekra would violate the policy vis-a-vis

the rights of inhabitants or residents of Ramapir No

Tekro and giving the petitioners priority at that place

would strike at the policy itself.

12. In view of what is held herein-above, I find no

reason to interfere with the action of the Corporation in

allotting alternative accommodation at the place reflected

in impugned notice dated 1.6.2019. The petition is

accordingly dismissed.

13. However, a request is made by Mr. Bomi H.

Sethna, learned counsel for the petitioners to extend

interim relief for a period of four weeks since the same is

operating for over two years, to which Mr. Anuj K.

Trivedi, learned counsel for the respondents vehemently

objects in view of the fact that the TP Scheme needs to be

C/SCA/12516/2019 JUDGMENT DATED: 22/11/2021

implemented. Considering the fact that the interim relief

has been operative for over two years, the same shall

remain in operation till 15.12.2021. Rule is discharged.

No order as to costs.

[ BIREN VAISHNAV, J. ] *** VATSAL