Tribhovandas Damjibhai ... vs State Of Gujarat
2022 Latest Caselaw 6321 Guj

     C/SCA/21733/2019                                     ORDER DATED: 15/07/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21733 of 2019

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                     TRIBHOVANDAS DAMJIBHAI NADIYAPARA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
MS. JYOTI BHATT, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                                Date : 15/07/2022

                                  ORAL ORDER

1. The matter has been heard finally, as requested by learned

advocates for the parties, at the admission stage.

2. The petitioner has filed this petition under Article 226 of

the Constitution of India for the following reliefs:

"(a) YOUR LORDSHIPS be pleased to issue appropriate writ, order and/ or direction, directing the respondent authorities to forthwith hand over peaceful and vacant possession of Final Plot No. 6 of Town Planning Scheme No.5 (Jamnagar- Vibhapar) admeasuring 11015 sq. meters, finalised vide Notification No. GH/V/222 of 2016/TPS-172015-630-L dated 20.12.2016 (at Annexure A), in the interest of justice;

(b) YOUR LORDSHIPS be pleased to issue appropriate writ, order and/ or direction, directing the Respondent authorities to pay compensation to the Petitioner - original owner of the land

C/SCA/21733/2019 ORDER DATED: 15/07/2022

which has been Final Plot No.6 admeasuring 11015 sq. meters under Town Planning Scheme No.5 (Jamnagar- Vibhapar) by determining the amount of compensation on the basis of market price of the land as on this date and to pay the same to the petitioner with 18% interest per annum w.e.f 29.09.2018 till date of actual payment, within such time limit as may be deemed fit, proper and just by this Hon'ble Court, in the interest of justice;

(C) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to direct the Respondent authorities to submit action taken report on the representations made by the Petitioner and further be pleased to direct the Respondent authorities to assist and provide all necessary help to the Petitioner in getting peaceful and vacant possession of Final Plot No. 6 admeasuring 11015 sq. meters of Town Planning Scheme No. 5 (Jamnagar- Vibhapar) in the interest of justice;

(D) YOUR LORDSHIPS be pleased to grant such other and further reliefs in favour of the petitioner, as deemed fit, just and proper in the interest of Justice."

3. The brief facts arising from the record are as under:

3.1 The petitioner is the owner and occupier of the land

admeasuring 16188 Sq. Meters situated at Revenue Survey

No. 939/ Paikee 1 situated at Jamnagar. That in April, 2005,

the State Government proposed Town Planning Scheme

No.5 (Jamnagar- Vibhapar) in exercise of power conferred

under Section 48(2) of the Town Planning Act. The Town

Planning Officer was appointed for finalising the draft Town

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Planning Scheme. Thereafter, Town Planning Officer

prepared preliminary Town Planning Scheme and forwarded

it to the State Government as provided under Section 52(2)

and Section 64 of the Town Planning Act, which came to be

finalised on 20.12.2016. On such finalisation, the land

owned and possessed by the petitioner bearing Revenue

Survey No. 393/ Paikee 1 was given upon Plot No.6 and was

later on converted into Final Plot No.6, admeasuring 11015

sq. Meters. Thereafter, on 29.9.2018, Notice came to be

issued to the petitioner under Section 68 of the Town

Planning Act read with Rule-33 thereof, directing the

petitioner to hand over the possession of earmarked

portion of Revenue Survey No. 393/ Paikee 1 and to accept

Final Plot No.6. It is also further case of the petitioner that

his name was mentioned in Form No.F wherein land

admeasuring 11015 sq. Meters of Final Plot No.6 came to be

shown against him. That on such allotment of Final Plot

No.6, when the Petitioner went to the site for taking over

possession of the Plot allotted to him, he could get only

80% of the plot area and the possession of remaining 20%

area could not be taken as the adjoining Plot owners have

raised objection about authority of Municipal Corporation

C/SCA/21733/2019 ORDER DATED: 15/07/2022

for handing over the Plot to the petitioner. In view of that,

the petitioner approached the Municipal authority to do

needful for handing over the vacant possession of allotted

Final Plot to the petitioner. However, no action came to be

taken by the respondent Corporation for handing over the

vacant possession of entire Final Plot No.6 allotted to him.

Hence, he has preferred this petition.

4. Affidavit-in-reply has been filed on behalf of Municipal

Corporation Respondent No.3 at Page-25, wherein

admitting the fact that Final Plot No.6 came to be allotted

to the petitioner. It has contended that in reality, the

peaceful possession was already handed over to the

petitioner, and therefore, if there is any private dispute,

then it is to be resolved by the petitioner himself. It is also

contended that it is not the responsibility of the respondent

Corporation to resolve the said private dispute.

5. Heard Mr. Pratik Jasani, learned advocate for the petitioner,

Ms. Jyoti Bhatt, learned AGP for respondent State and Mr.

H.S. Munshaw, learned advocate for the respondent Nos.2

and 3 at length. Perused the material placed on record and

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the decisions cited by learned advocate for the petitioner.

6. Mr. Jasani, learned advocate for the petitioner has

vehemently submitted that it is incumbent on the part of

the authority to handover vacant and peaceful possession

of the Final Plot No.6 allotted to the petitioner. He has

submitted that the authority has already taken over the

possession of the original Plot of the petitioner and,

therefore, it is incumbent on the part of the authority to

handover vacant and peaceful possession of the land which

has been allotted to the petitioner in lieu of his earlier Plot.

Mr. Jasani, learned advocate for the petitioner has also

submitted that in a similarly situated fact, this Court has

directed authority to hand over vacant and peaceful

possession to the concerned petitioner. He has relied upon

the following decisions and has prayed to allow the

petition:

1. Amarsinh Shanaji Thakore v. State of Gujarat,

reported in 2004 (7) G.H.J 127, wherein it is observed

in para-4 as under:

"4. As held in the case of The Municipal Corporation for

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Greater Bombay and another Vs. The Advance Builders (India) Pvt.Ltd. and others reported in AIR 1972 Supreme Court 793 and in the judgment of this Court in SCA No.982 of 1991, the authorities under the Town Planning Act are bound to implement the Town Planning Scheme and hand over the peaceful and vacant possession of the plot which is allotted to the person under the Town Planning Scheme. As held by the Supreme Court in the case of The Municipal Corporation for Great Bombay and another (supra), even the Municipal Corporation is required to remove the unauthorized construction which is there on the land in question. Considering the aforesaid judgment and the facts and circumstances of the case, the respondents, more particularly, respondent no.4 is directed to implement the Town Planning Scheme with regard to the land in question and hand over the peaceful and vacant possession of F.P.No.12 to the petitioner within a period of six months from today. The petitioner is also directed to hand over the peaceful and vacant possession of O.S.No.167/5 O.P.No.21 F.P.No.194 to the Municipal Corporation simultaneously of getting the possession of F.P.No.12 from the Municipal Corporation. If for some reasons, the Municipal Corporation is not in a position to hand over the possession of F.P.No.12 to the petitioner, the respondent no.2 Corporation is directed to pay the compensation at the market price to the petitioner in lieu of allotment of F.P.No.12. Rule is made absolute to the aforesaid extent with no order as to costs. It will be open for the petitioner to challenge the amount of compensation in accordance with law."

2. Rajeshbhai Vithalbhai Sardhara v. State of

Gujarat, reported in 2016 JX(Guj) 425, wherein paras-6

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and 7 read as under:

"6. I have heard learned advocates appearing on behalf of the respective parties. The undisputed fact in the case on hand is that preliminary scheme has been sanctioned by the State in the year 2010 and Notification u/s.65 of the Act has also been published in the year 2013. It is an undisputed fact that once preliminary scheme is sanctioned, the land vests in the appropriate authority as per the plan and, therefore, the person, who was owner of the property, prior to sanctioning of the scheme, cannot take any action since he has no right, title and interest over the said property. Apart from the said aspect, Section 68 of the Act empowers the authority to summarily evict any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme.

7. It has been held by Hon'ble Apex Court in the case of Municipal Corporation of Greater Bombay (supra) that appropriate authority is under an obligation to perform its duty in accordance with the provisions of the Town Planning Act. In the said case, it has been held that responsibility of removing the huts, sheds, stables and other temporary structures which contravene the scheme is that of the Corporation and not of the owners of the plots. In the case of Amarsinh Shanaji Thakore (supra), co-

ordinate bench by relying upon the decision of Municipal Corporation of Greater Bombay (supra) directed the authority to hand over the peaceful and vacant possessions of the plots to the petitioners within prescribed period. Therefore, in my opinion, ratio laid down by the Hon'ble Apex Court as well as co-ordinate bench of this Court are squarely applicable in the facts and circumstances of the present case. Therefore, this petition

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is required to be accepted. Hence, the petition is partly allowed. The respondent Corporation is hereby directed to implement the scheme in question as expeditiously as possible and preferably within a period of six months from the date of receipt of copy of this order. Rule is made absolute to the aforesaid extent. No costs. Direct service is permitted.

7. Ms. Jyoti Bhatt, learned AGP has submitted that it is for the

Corporation to do needful and in view of the reply of the

Corporation, State has nothing to do. She has prayed to

dismiss the petition.

8. Mr. H.S. Munshaw, learned advocate for the Corporation has

referred to the contents of the reply affidavit and has

submitted that in view of the fact that at the relevant point

of time, actual possession was handed over to the

petitioner of the Plot in question, as per the Annexures

placed with the Reply Affidavit, the dispute arose by the

adjoining land owners needs to be resolved by the

petitioner himself. He has prayed to dismiss the petition.

9. In rejoinder, Mr. Jasani, learned advocate for the petitione

has submitted that documentary evidence provided with

the affidavit-in-reply does not bear the signature of the

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petitioner of having received the actual possession of the

land in question. He has submitted that even as per

documents at Exhs-35, 36 and Rojkam at Exh-37, no one was

present on behalf of the owner or possessor of the land in

question. According to him, under this circumstances, the

version of the respondent that actual possession was

handed over to the petitioner cannot be believed.

10. Having considered the submissions made on behalf of both

the sides coupled with the material placed on record and

decisions cited at bar, it is crystal clear that there is no

dispute regarding implementation of the Town Planning

Scheme and taking over of the original land of the

petitioner by the authority and allotting him Final Plot No.6.

It reveals from the record that the respondent Corporation

is relying upon the documents at page-34 to 36 for its stand

that actual possession of the Final Plot was given to the

Petitioner. This stand of the Corporation is devoid of merit

as it clearly reflects from the Rojkam that when the Officers

of the Corporation visited the place, no one was present on

behalf of owners of lands or the occupier thereof. Even

there is no signature of any person of receipt of actual

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possession of the land in question. Thus, when the authority

has taken over the possession of the original plot of the

petitioner, then it was incumbent on the part of the

Corporation to hand over the peaceful and vacant

possession of the Final Plot No.6, which is allotted to the

petitioner, without any hindrance. As observed by the

coordinate bench of this Court in the aforesaid decisions,

the authority has its liability of handing over the vacant

possession to the petitioner.

11. Under the facts and circumstances of this case, coupled

with observation of this Court in aforesaid two decisions,

this petition is required to be accepted.

12. In view of the above, the petition is hereby allowed. The

respondent Corporation is hereby directed to hand over the

actual and peaceful possession of the Final Plot No.6 to the

petitioner within a period of four weeks from the date of

receipt of this order. If the Corporation is unable to do,

then, Corporation is hereby directed to pay compensation

at the market price to the petitioner in lieu of allotment of

Final Plot No.6. It will be open for the petitioner to

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challenge the amount of compensation in accordance with

law.

No order as to costs.

Direct Service is permitted.

(DR. A. P. THAKER, J) SAJ GEORGE