Gujarat High Court
Nidhi Co Operative Housing ... vs State Of Gujarat on 8 June, 2022
Bench: Ashutosh J. Shastri
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14698 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 14698 of 2016
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 14698 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Sd/-
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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 NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
NIDHI CO OPERATIVE HOUSING SOCIETY LTD
Versus
STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR PRASHANT G DESAI, SENIOR ADVOCATE with MR RUTUL P DESAI for the
Petitioner
GOVERNMENT PLEADER for RESPONDENT NO.1
MR MIHIR JOSHI, SENIOR ADVOCATE With MR DEEP D VYAS for
RESPONDENT NO.4
MR ADIL MIRZA for RESPONDENT NO.3
MR MB GANDHI, SENIOR ADVOCATE with MR CHINMAY GANDHI
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 08/06/2022
CAV ORDER
1. By way of present petition under Article 226 of the
Constitution of India, the petitioner has prayed for the following
reliefs:
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[A] THIS HONOURABLE COURT may be pleased to issue a writ
of mandamus or a writ in the nature. of mandamus and/or
any other appropriate writ, order or direction and may be
pleased to direct the respondent No. 2- AUDA to implement
the Resolution dated 2.1.2010 in its true spirit and thereby
allot the vacant land admeasuring 4645 sq. meters from
Final Plot No.100-P to the petitioner;
AND/OR IN THE ALTERNATIVE
[A] THIS HONOURABLE COURT may be pleased to direct the
respondent No. 3 Authority implement the Town Planning
Scheme No.1 qua final plot No.65 as directed earlier by this
Honourable Court in Special Civil Application No. 12749 of
2003, which is confirmed up to the Honourable Supreme
Court, and to hand over peaceful and vacant possession of
land admeasuring 4645 sq. meters of Final Plot No.65; to
[B] Pending admission, hearing and final disposal of this
petition, this Hon'ble Court may be pleased to direct the
respondent- AUDA, to forthwith reply to the Ahmedabad
Municipal Corporation instructing them with respect to the
land bearing Final Plot No100-P, T.P. Scheme (Thaltej) No.2
(Varied); qua land admeasuring 5675 sq. meters which is
vacant land and ear-marked in the map (Annexure-N) from
creating any encumbrances or any third party right in
respect of the said vacant land, which is allotted to the
petitioner- society.
[C] Any other and further relief or reliefs to which this Hon'ble
Court deemed fit interest of justice, may kindly be granted.
2. The background of facts leading to the rise of present
proceedings is that the petitioner-society, i.e. Nidhi Co-operative
Housing Society Ltd. is the owner of the land bearing Final Plot
No.65 of Town Planning Scheme (Thaltej) No.1 admeasuring
4645 Sq. Mtrs. The said land is part of sanctioned Town
Planning Scheme which was sanctioned by the State
Government under Section 65 of the Gujarat Town Planning &
Urban Development Act, 1976 (The Act of 1976' for short). It is
the case of the petitioner that the land bearing Survey No.89
admeasuring 19627 Sq. Mtrs, Survey No.109 admeasuring
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12642 Sq. Mtrs., Survey No.110/1 admeasuring 7588 Sq. Mtrs.,
and Survey No.110/2 7588 Sq. Mtrs, of village Thaltej, Taluka
Daskroi, District: Ahmedabad, were forming part of Thaltej Town
Planning Scheme No.1 and the same were given OP No.10, total
admeasuring 47450 Sq. Mtrs. against which three final plots
were allotted, being Final Plot Nos.34, 57 and 65, admeasuring
6787, 6010 and 20434 Sq. Mtrs. The petitioner being original
owner of Final Plot Nos.34 & 57 entered into a sale deed with
one Tulsi Park Co-Operative Society and further also entered
into the sale deed with Tulsi Park Co-Operative Society in
respect of the part of the land admeasuring 15789 Sq. Mtrs. of
final plot No.65, wherein Tulsi Park Co-Operative Society Part-1,
2 & 3 are formed and they have put up construction over the
said Final Plots.
3. It is further the case of the petitioner that they have
entered into the sale deed with predecessor in title in respect of
the remaining land admeasuring 4645 Sq. Mtrs., forming part of
Final Plot No.65 of Town Planning Scheme No.1 in the year 1996
and are owners of the said land. So far as Final Plot Nos.34 and
57 are concerned, the possession of the said plots was also
handed over to Tulsi Park Co-Operative Society, for which there
is no dispute, but so far as Final Plot No.65 is concerned, out of
the land admeasuring 20434 Sq. Mtrs., possession of 15798 Sq.
Mtrs. of land was handed over to the aforesaid Tulsi Park Co-
Operative Society and with respect to remaining land,
admeasuring 4645 Sq. Mtrs., which was purchased by the
petitioner society, possession whereof was not handed over to
the petitioner since there was illegal and unauthorized
construction put up by one Snehanjali Co-operative Society.
Even after sanctioning of the Town Planning Scheme under
Section 65 of the Act, 1976, the petitioner society was not
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handed over vacant and peaceful possession of the land
admeasuring 4645 Sq. Mtrs. out of Final Plot No.65 of T.P.
Scheme No.1.
4. Since the same not been handed over, the petitioner
initially filed a petition being Special Civil Application No.12749
of 2003 before this Court against the respondent AUDA for
implementation of the Town Planning Scheme, so as to see that
the said portion can be made available to the petitioner. During
pendency of the petition, the respondent- AUDA issued notice
under Section 68 read with Rule 33 to Snehanjali Society which
unauthorizedly kept possession but, Snehanjali Society had also
filed Special Civil Application No.1931 of 2005 before this Court,
hence the possession could not handed over to the petitioner.
5. It is the case of the petitioner that both the aforesaid
Special Civil Applications, i.e. Special Civil Application No.12749
of 2003 and Special Civil Application No.1931 of 2005, came up
for consideration before this Hon'ble Court and same were
disposed of vide order dated 20.10.2005, by virtue of which, the
Hon'ble Court was pleased to allow the petition filed by the
petitioner and directed the AUDA to implement the Town
planning Scheme (Thaltej) No.1 by handing over vacant
possession of Final Plot No.65 and simultaneously was pleased
to dismiss the Special Civil Application filed by Snehanjali Co-
Operative Society, i.e. Special Civil Application No.1931 of 2005.
The said judgment and order was declared by the Court on
20.10.2005. It is further the case of the petitioner that said
judgment and order passed by learned Single Judge, Snehanjali
Co-Operative Society filed Letters Patent Appeal Nos.1220 of
2006 and 1221 of 2006 respectively. The same were heard by the
Division bench of this Court and the Letters Patent Appeal filed
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by Snehanjali Co-Operative Society came to be dismissed by
judgment and order dated 13.8.2008. Against the said Judgment
and order dated 13.8.2008 passed by the Division Bench of this
Court, the members of Snehanjali Co-Operative Society filed
Special Leave Petitions being Nos.25505-25506 of 2008 before
the Hon'ble Apex Court and simultaneously, even Snehanjali Co-
op. Housing Society Ltd. also filed SLP (C) Nos.3025-3026 of
2009 challenging the order passed by the Division Bench of this
Court. So two Special Leave petitions were filed; one by the
society and another by the members of the society. The Hon'ble
Apex Court vide judgment and order dated 15.10.2008 and
2.3.2009 respectively was pleased to dismiss the Special Leave
Petitions and as such, the original order passed by learned
Single Judge whereby the direction was issued to implement the
scheme has attained finality.
6. The case of the petitioner is that after dismissal of the said
S.L.Ps. on 2.3.2009, a legal notice was issued by the petitioner
through advocate, on 9.3.2009 to AUDA for implementation of
the Town Planning Scheme as per the order passed by the
Hon'ble High Court of Gujarat, which has been affirmed by the
Hon'ble Apex Court. To this, the respondent authority, i.e.
AUDA, replied on 4.4.2009 informing that the action will be
taken after the Code of Conduct is over in the State.
Subsequently, the AUDA wrote a further letter to the petitioner
for attending the meeting to be held on 3.8.2009 with the Chief
Executive Officer. The said communication which was issued to
the petitioner is dated 31.7.2009.
7. It is further the case of the petitioner that during the
course of the said meetings on 3.8.2009 and subsequent thereto,
on 7.9.2009, a tripartite agreement was prepared, whereby the
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land which was allotted to the petitioner under the Town
Planning Scheme No.1, was sought to be placed in reservation
for sale for residential and the amount to be paid by Snehanjali
Society and the petitioner to be allotted another vacant final plot
in Town Planning Scheme No.2 (Thaltej). Copy of the said
communication received by the petitioner from AUDA along with
the draft tripartite agreement is dated 6.11.2009. The petitioner
vide communication dated 24.11.2009 informed the respondent
AUDA that there is some correction in respect of tripartite
agreement, whereby it is proposed that AUDA will sanction the
plans for construction on the land which is to be allotted and the
same was understood between the petitioner society and the
AUDA and after everything is completed, the petitioner society
will sign the tripartite agreement. In view of such meeting and
deliberation, the respondent AUDA passed even a Resolution
whereby the petitioner was sought to be allotted the vacant land
out of Final Plot No.100 of Town Planning Scheme No.2 and on
the basis of the said resolution, the respondent- AUDA has
asked for consultation with Chief Town Planner vide
communication dated 3.2.2010 in view of Section 41(1) of the Act
of 1976, and pursuant thereto, final Resolution was also passed
on 25.3.2011 for declaration of intention under Section 41 of the
Act, 1976, and pursuant to the said declaration of intention,
even notice was issued by AUDA to the petitioner for inviting
objections and suggestions from the petitioner society in its
owners' meeting to be held in view of Rule 17. Even the notice
was issued in daily newspaper 'SANDESH' on 6.7.2011, in
response to which, the petitioner also filed objections and
suggestions on 14.7.2011.
8. Additionally, the petitioner also submitted that after the
resolution was passed for declaration and intention, some
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officers from AUDA, named, Ms. Mamta Verma, CEO, Ms.
Munshi, Sr. Town Planning Officer (STP), Shri R.B. Joshi, Shri
Bholuvalia and Shri Chaudhary and others visited the site along
with office bearers of the petitioner society and showed the land
which is vacant and identified the same and even the said land
was earmarked by them, so as to see that the petitioner be
allotted. A plan was also prepared indicating the land for
allotment which is annexed to the petition compilation at
Annexure-N (Colly.). Subsequently, a Draft Scheme was
sanctioned under Section 48 of the Act, wherein the petitioner
was allotted Final Plot No.100/2 in said Town Planning Scheme
No.2 (varied). F-form and the part plan with respect to that was
also prepared on 1.10.2012. The petitioner had submitted that
Final Plot No.100 of Town Planning Scheme No.2 was a large plot
admeasuring about 23272 Sq. Mtrs. and the entire plot is
reserved for EWS scheme, except area of 5675 Sq. Mtrs. and the
entire plot is already built up where there are houses
constructed and occupied by the third parties. It is the say of the
petitioner that out of that Final Plot No.100 of Town Planning
Scheme No.2, only vacant area left out is 4645 Sq. Mtrs.
9. However, recently, it has been noticed by the petitioner
that the land earmarked in the draft scheme is a land which is
already built up and vacant land is shown to be under EWS
Scheme. It is further submitted that on 16.6.2014, 21.7.2015
and 18.1.2016, the petitioner informed the respondent AUDA
requesting for allotment of the aforesaid vacant Final Plot No.
100/2, out of the area, as indicated above, and in turn, the
AUDA informed the petitioner that steps are in contemplation.
This entire process was undertaken by the respondent AUDA to
obviate the contempt proceeding to be initiated against the
AUDA by the petitioner society and on that basis, the petitioner
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society was to be allotted aforesaid vacant portion of land out of
Final Plot No.100 as indicated above. The intention of the
authority was not kept in mind and the plan was prepared in
such a way that the petitioner does not get even the said vacant
plot, which is contrary to the understanding arrived at between
the petitioner and the respondent AUDA. The petitioner was
otherwise entitled to land admeasuring 4645 Sq. Mtrs. from
Final Plot No.65 of Town Planning Scheme No.1, which is
possessed by Snehanjali Co-Operative Housing society. So, on
one hand, the respondent AUDA did not take any step to get the
land vacated from Final Plot No.65 of Town Planning Scheme to
the extent of 4645 Sq. Mtrs. for allotting to the petitioner and on
other hand, as a part of systematic design, the petitioner is being
avoided from allotment of the area from Final Plot No.100 of
Town Planning Scheme No.2. So, under one pretext or the other,
the respondent AUDA throughout acted in a highhanded manner
with malice though the allotment issue in any case in favour of
the petitioner has attained finality right upto the Hon'ble
Supreme Court in a long drawn litigation.
10. A situation by sheer inaction is created in such a manner
that during passage of time, the area came within the limits of
Ahmedabad Municipal Corporation and it is the say of AUDA
now that the land has come within the peripheral limits of
Ahmedabad Municipal Corporation and as such, the petitioner is
sent pillar to post and has in turn made a request even to
Ahmedabad Municipal Corporation to the effect that the land of
Final Plot No.100/P which is open piece of land, deserves to be
allotted to the petitioner in view of the aforesaid understanding
arrived at, as indicated above, wherein in turn the petitioner was
informed by Ahmedabad Municipal Corporation that the
Corporation has already asked for clarification from AUDA
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recently, and yet the respondent AUDA has not replied. In the
meantime, the Ahmedabad Municipal Corporation has also
included the said land, i.e. Final Plot No.100/P in the list of the
lands which are reserved for EWS scheme and called for
applications from the public at large and the last date of
submission of said application was fixed as 31.8.2016. At this
juncture, having noticed, the petitioner made a representation in
the form of protest, before the respondent AUDA as well as the
respondent Corporation by specific representations dated
11.8.2016 and 12.8.2016 respectively and having found that the
authorities' intention is quite malafide, just to avoid allotment to
the petitioner, under one pretext or the other, the petitioner is
left with no alternative constrained to approach this Court by
way of present petition under Article 226 read with Articles 14,
19(1)(g) and 300A of the Constitution of India for the reliefs as
mentioned herein-before.
11. Learned senior advocate Mr. Prashant G. Desai, assisted
by learned advocate Mr. Rutul P. Desai for the petitioner has
vehemently contended that the peculiar background of fact is
clearly reflecting high-handed, arbitrariness and contemptuous
act on the part of the respondent authority. It has been
submitted that basically, present petition has been filed for
seeking implementation of resolution dated 2.1.2010 in its true
letter and spirit, whereby the petitioner is to be handed over the
vacant portion of land admeasuring 4645 Sq. Mtrs. from Final
Plot No.100 Paiki (Now, stated as 100/2) in sanctioned
preliminary Town Planning Scheme No.2 (Thaltej) (second varied)
to the petitioner society and by referring to the said resolution,
an attention is drawn on page 19 and 20 t substantiate his
contention.
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12. Learned senior advocate Mr. Desai has further submitted
that the petitioner was originally allotted the land admeasuring
4645 Sq. Mtrs. of Final Plot No.65 forming part of Town Planning
Sdcheme No.1 (Thaltej) in lieu of its original plot since said
preliminary Town Planning Scheme sanctioned on 2.2.1993.
Though the possession of the original plot of the petitioner
society is taken away way back in 1993 itself, yet the petitioner
is left with no other final plot or actual allotment despite the fact
that throughout the eligibility and entitlement of the petitioner
society for having a final plot in the scheme is crystallized right
upto Hon'ble Supreme Court of India in long drawn litigation. So
far as legal right of the petitioner vis-a-vis legal obligation of the
respondent authority to hand over the peaceful and vacant
possession of the final plot to the petitioner in lieu of its original
plot, said controversy has attained finality.
13. Learned senior advocate Mr. Desai has submitted that
Hon'ble High Court in previous litigation has pointed out that
Snehanjali Co-operative Society has also been declared as
encroacher and said aspect has also been confirmed by Hon'ble
Apex Court and as such, there is hardly any reason justifiable
available to the respondent authority to deprive the petitioner
from allotment of final plot. For this purpose, Mr. Desai has
drawn the attention of this Court to the order passed by learned
Single Judge dated 20.10.2005 (at Page 22, relevant at Page 75),
as also the order passed by the Division Bench of this Court
dated 13.8.2008 and also orders passed by Hon'ble the Apex
Court dated 15.10.2008 and 2.3.2009 respectively. It has been
submitted that the respondent AUDA in order to come out from
the contempt committed by it of the Court in the year 2009,
Snehanjali Co-operative Society approached the petitioner
society and requested on humanitarian ground to accept another
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plot in another Town Planning Scheme in lieu of Final Plot
No.65. According to AUDA, which proposed to carve out a land
admeasuring 4645 Sq. Mtrs. out of Final Plot No.100 of
sanctioned Town Planning Scheme No.2 (Thaltej) which was
reserved for EWSH. It was understood that if the petitioner
society is handed over area admeasuring 4645 Sq. Mtrs out of
afore-mentioned Final Plot No.100, then only, the petitioner will
forgo its rights qua Final Plot No.65 and based upon such
understanding, which took place, even a tripartite agreement
also came to be prepared between petitioner society, AUDA and
Snehanjali Cooperative Society and the clauses clauses
contained in the said tripartite agreement are clause Nos.2 to 15,
reflecting on page 110 of the petition compilation. One of the
condition precedents of the said tripartite agreement is that even
before the variation in the scheme for Final Plot No.100 is
carried out and sanctioned, the Respondent AUDA was required
to handover the peaceful and vacant possession of an area
admeasuring 4645 Sq. Mtrs out of Final Plot No.100 of TP
Scheme No.2 (Thaltej). Accordingly, even the officers of the
respondent AUDA along with the office bearers of the petitioner
society visited the site and the petitioner society was shown the
land which was vacant and identified and even earmarked by the
said officer. This fact has not been disputed, as clearly asserted
in para 3.16 (page 10).
14. Learned senior advocate Mr. Desai has submitted that in
light of the said tripartite agreement, a resolution came to be
passed on 2.1.2010 (at Page-19) resolving that the petitioner
society be allotted the area admeasuring 4645 Sq. Mtrs. out of
Final Plot No.100 of Town Planning Scheme No.2 (Thaltej) and to
act in accordance with the tripartite agreement and even on the
same lines, further resolution also came to be passed on
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25.3.2011 and thereby the respondent AUDA declared its
intention to vary preliminary Town Planning Scheme No.1
(Thaltej) (first varied) qua Final Plot No.65 which was sought to
be placed under sale for residential and similarly intention was
declared for varying preliminary Town Planning Scheme No.2
(Thaltej) (second varied) for the purpose of carving out pf
No.100/2 of an area admeasuring 4645 Sq. Mtrs. out of Final
Plot No.100 which was reserved for EWSH in order to see that
allotment can take place to the petitioner society. A reference is
made to page 134 of the petition compilation.
15. According to Mr. Desai, learned senior advocate, while
preparing the draft Town Planning Scheme No.2 (Thaltej) (second
varied), even F-form was also prepared by the respondent AUDA,
wherein Final Plot No.100/2 was carved out from Final Plot
No.100 and which was proposed to be allotted to the petitioner
society. However, it appears that the draftsman of AUDA while
preparing the map of draft Town Planning Scheme No.2 (Thaltej)
(second varied) instead of earmarking Final Plot No.100/2, on
vacant portion of Final Plot No.100 which was physically shown
to the petitioner society in presence of the office bearers of the
respondent authority and Snehanjali Co-operative Society, land
of Final Plot No.100/2 was earmarked, which was already
constructed area and this has led the petitioner to present this
petition since intention of the respondent authority is to see that
somehow the issue of allotment to the petitioner can be dragged
on. This according to Mr. Desai is clearly and outrageously
malafide intent on the part of the officers of the respondent
authority.
16. Mr. Desai has then submitted that realizing the situation,
as indicated above, Shri Vijay Nehra, IAS, holding the charge as
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the Commissioner of the AMC as well as in-charge Chairman of
the AUDA, filed his affidavit on 6.8.2019 (reflecting on page-202-
209) and in the said affidavit, it is clearly admitted by him in
paragraph Nos.4 and 10 that inadvertent mistake was
committed by the draftsman for earmarking the Final Plot
No.100/2 which was earmarked on a constructed premises of
Avishkar Bungalows. It has further been asserted in the said
affidavit that the mistake has now been rectified and
communication in this regard has been sent to the Chief Town
Planner. It is further admitted by the said deponent that Final
Plot No.100/2 is to be allotted to the petitioner society, as
resolved, in lieu of its Final Plot No.65 of Town Planning Scheme
No.1 (Thaltej) (first varied). Even the said deponent has further
asserted that the matter can be resolved in favour of the
petitioner by adopting one of the two modes, namely (1) by
correcting the aforesaid inadvertent mistake and thereby can be
allotted Final Plot No.100/2 to the extent of 4645 Sq. Mtrs. to
the petitioner by changing the designation of the said open
portion of land to sell for residence purpose or (2) by removing
the illegal encroachment of Snehanjali Cooperative Society from
Final Plot No.65 of Town Planning Scheme No.1 (Thaltej) (first
varied) and in turn to allot the same to the petitioner society. Mr.
Desai has submitted that so far as second mode is concerned,
i.e. removal of illegal encroachment of Snehanjali Cooperative
Society from Final Plot No.65, said mode is found to be difficult
in view of the fact that in Special Civil Application No.14428 of
2019, there is an order of status- quo in favour of Snehanjali
Cooperative Society and therefore only first mode would be more
probable, whereby the petitioner be handed over the peaceful
and vacant portion of Final Plot No.100/2 from Town Planning
Scheme No.2 (Thaltej) (Second varied) available with the
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authority to the extent of the area, as indicated above, and now
since inadvertent mistake of the draftsman has been rectified,
said mode, according to Mr. Desai is an alternative mode. Even
preliminary Town Planning Scheme No.1 (Thaltej) (first varied)
and Preliminary Town Planning Scheme No.2 (Thaltej) (second
varied) came to be sanctioned by the State Government vide its
notification dated 11.10.2019, reflecting on page 275-280. As a
result of this, first mode which has been indicated is probable
mode, even as per the say of the deponent. However, be that as it
may, Mr. Desai has submitted that the petitioner society which
had handed over its original plot way back in 1993, in any case,
deserves to be allotted from either of the modes and it is not
open for the respondent authority in anyway to dis-entitle under
one pretext or the other from allotment. It is an obligation on the
part of authority to immediately handover the final plot in lieu of
the plot, which has already been taken long back. That being so,
Mr. Desai has vehemently contended that the action on the part
of the authority is per se not only arbitrary, but smacks clear
malafides.
17. It has further been contended by learned senior advocate
Mr. Desai that resolution dated 2.1.2010 which has been passed
by the respondent authority is still in force and same is not
recalled and as such, it is obligatory on the part of respondent
authority to implement the same. Further, it has been contended
that so far as submission with regard to an alternative prayer is
concerned, same will also survive since the petitioner has yet not
handed over Final Plot No.100/2 in the Preliminary Town
Planning Scheme No.2 (Thaltej) (second varied) despite the fact
that entitlement of the petitioner is confirmed right upto the
Hon'ble Apex Court. It has been contended that right of Final
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Plot No.65 can be waived only if peaceful and vacant possession
of Final Plot No.100/2 along with all its rights is handed over to
the petitioner and resolution dated 25.3.2011 (at Page 132)
clearly speaks about condition precedent for waiving its right
qua Final Plot No.65. It has been submitted that respondent
AUDA in its affidavit dated 22.7.2019 clearly indicates that if
Final Plot No.100/2 is not handed over, then solution would be
to recall the sanction granted to variation by the State
Government, the only option, and then to handover the
possession of Final Plot No.65 to the petitioner. A reference is
made to page 196-198 of the petition compilation. Even a
reference is made to second affidavit filed by respondent AUDA
dated 26.7.2019, in para 4, it has been stated that within a
period of six months, vacant and peaceful possession of Final
Plot No.65 will be handed over to the petitioner society. Even the
then Municipal Commissioner Shri Vijay Nehra holding the
charge of respondent AUDA has also clearly asserted in para 11
to adopt two modes in order to resolve the issue for allotting final
plot to the petitioner society and two modes have been
communicated vide communication dated 2.8.2019. When that
be so, the submission that the alternative prayer would not
survive is nothing but misconceived and misleading to the
Hon'ble Court.
18. Learned senior advocate Mr. Desai has further submitted
that a curious stand is taken at the fag-end that a tripartite
agreement is not signed and as such, cannot be enforced. Said
submission is totally misconceived in view of the fact that none
of the respondents had disputed said tripartite agreement. In
fact, respondent AUDA (now AMC) has acted upon the said
terms of the tripartite agreement by earmarking Final Plot
No.100/2 admeasuring 4645 Sq. Mtrs. of Town Planning Scheme
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No.2 (Thaltej) (second varied) to be reserved for sale for
residential in order to see that the allotment can be made to the
petitioner society. In none of the affidavits, it has ever been
pointed out that since tripartite agreement is not signed, it is not
binding, on the contrary in paragraph 2 of the affidavit of
respondent AUDA dated 15.4.2017, a fact of entering a tripartite
agreement is clearly reflecting on page 176. So much so, even in
subsequent affidavit dated 22.7.2019 also, there is a reference
with regard to such agreement and as it is ill-founded on the
part of the respondent counsel to sideline the agreement which
has been mentioned. Even in Government affidavit dated
10.2.2020 also, a clear reference is made in paragraph 11, as a
result of this, now it is not open for the respondent counsel to
ignore such deliberation, such agreement and steps taken in
reference to that. On the contrary, according to Mr. Desai, terms
of the tripartite agreement were executed and in response
thereto, the petitioner was shown a vacant land, to be ear-
marked out of Final Plot No.100 of Town Planning Scheme No.2
(Thaltej). In light of such assertion on oath, it is not now open to
to the respondent authorities to back out from such assertion.
19. Learned senior advocate Mr. Desai has submitted that the
concept of simultaneous implementation of the sanctioned Town
Planning Scheme No.1 (Thaltej) (first varied) and sanctioned
Town Planning Scheme No.2 (Thaltej) (second varied) is also an
afterthought. The idea behind the affidavits which have already
been submitted prior in point of time and at the fag-end just
with a view to avoid allotment to the petitioner, last affidavit in
October 2021 is filed. On the contrary, the authorities have
remained dormant on the issue and now have come out to
dribble the issue further by contradictory affidavits. Hence, the
case is made out strongly by the petitioner and non-allotment to
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the petitioner on the contrary is a contemptuous act which
cannot be viewed lightly in view of this peculiar background of
facts.
20. Learned senior advocate Mr. Desai has submitted that
during the course of hearing, the authorities have tried to project
the financial implications on the authorities but while
contending this, the authorities have forgotten that the allotment
to the petitioner legitimately crystallized in favour of the
petitioner society has been dribbled till date by them by not
implementing. So, instead of financial implications on the
respondent authorities, the agonies, dis-entitlement, without any
justifiable cause and to deprive the petitioner from the property
rights are on the contrary having much significance, than
concocted financial implications, tried to bring it to the notice of
the Court. Had the allotment been made by the authority way
back in the year when the petitioner became entitled, this
eventuality on the either side would not have occurred and as
such, this self-created problem by the authority deserves to be
deprecated in view of series of litigation in which the petitioner
had been dragged right upto the Supreme Court. According to
Mr. Desai, the argument which has been canvassed on the issue
of cost is totally misconceived by virtue of Section 77 of the Town
Planning Act. Cost of Town Planning Scheme is with regard to
the estimates for the period in which the preliminary scheme is
to be implemented after it is sanctioned under Section 65 of the
Act. Section 65(4) mandates the authority for implementing the
scheme, within a period of two years period from the date of its
sanction and as such, when the authority has failed to discharge
their obligation, their fault cannot be fastened upon the
petitioner under the guise of financial implications. On the
contrary, chronology of events and orders will clearly indicate the
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gross arbitrariness, unreasonableness is being shown by the
authority while opposing the present petition also.
21. Learned senior advocate Mr. Desai has further submitted
that a lame excuse is tried to be projected under the garb of
'Land Disposal Policy', but the said issue may not arise here in
view of the fact that even after consideration of the said disposal
policy, a resolution came to be passed on 2.1.2010 and even
after consideration of it also, the authority has carried out the
process whereby the Final Plot No.100 in Town Planning Scheme
No.2 (Thaltej) which was initially reserved for EWSH and as
such, in order to carve out the area, admeasuring 4645 Sq.
Mtrs., out of total said Final Plot No.100, procedure was to be
undertaken to designate the land for sale for residential and this
was just with a view to see that allotment can take place to the
petitioner society. A reference is made to paragraph 5 of the
affidavit of the Municipal Commissioner, reflecting on page 204,
as also paragraphs 10 and 11 from page 206 and in addition
thereto, an attention is also drawn to an affidavit filed by the
respondent State Government, especially reference is made to
paragraph 12 and as such, the use of word 'Land Disposal
Policy, cannot be interpreted in the manner in which the
grievance of the petitioner is to be diluted. On the contrary,
entitlement to the extent of 4645 Sq. Mtrs. out of Final Plot
No.100 of Town Planning Scheme No.2 (Thaltej) deserves to be
considered.
22. Learned senior advocate Mr. Desai has further submitted
that this Hon'ble Court in similar situation in Special Civil
Application No.982 of 1991, vide order dated 3.10.2000 and in
Misc. Civil Application No.263 of 2002 as well as Misc. Civil
Application No.801 of 2001 filed in main Special Civil Application
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No.982 of 1991, was pleased to issue direction vide an order
dated 22.2.2002, which makes it clear that the stand taken by
the authority just to thwart the process of allotment is
misconceived, arbitrary and mischievous according to Mr. Desai.
Emphasis has been made by learned senior advocate Mr.Desai of
paragraph 12 from the decision of Hon'ble the Apex Court
reported in AIR 1972 SC 793, whereby it is contended that it
was a statutory duty rather an obligation to implement the Town
Planning Scheme in its letter and spirit. Entire chronology of
events is clearly indicating that the respondent authorities have
miserably failed in discharge their obligation under one pretext
or the others. According to Mr. Desai, there are all probabilities
of dragging on this issue with deliberate intent to see that no
allotment can take place to the petitioner society. As a result of
this, according to Mr. Desai, a writ deserves to be issued in this
peculiar background of facts, directing the respondent
Ahmedabad Municipal Corporation to handover peaceful and
vacant possession of Final Plot No.100/2 to the extent of 4645
Sq. Mtrs. of sanctioned Final Plot No.2 (Thaltej) (second varied)
within a reasonable period after completing all necessary
formalities within a period of three months at the risks and costs
of the respondent Corporation and the inaction on the part of the
respondent authorities deserves to be deprecated. NO other
submissions have been made.
23. Learned senior advocate Mr. Mihir Joshi appearing on
behalf of the contesting respondent authority, assisted by
learned advocate Mr.Deep D. Vuas has vehemently tried to
oppose the petition and tendered written submission to the
following effect:-
(a) Land occupied by Snehanjali Society was purchased by
the petitioner- Nidhi in March, 1996.
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The rights accrued under the principal scheme and also
under the orders passed by the court, by their conduct
are subjected to variation, which is governed by the
procedure of variation under TP Act
(b) Both varied draft TPS were sanctioned on 1.10.2012 and
the decision were taken by TPO and the varied
preliminary TPS were sanctioned on 11.10.2019 and the
final scheme was sanctioned on 16.12.2020.
(c) There are no objections raised by the parties, objecting to
the process of varied TPS, which is finalized.
(d) All parties would have mutual and corresponding rights
and obligations, which are governed under the Town
Planning Scheme.
(e) The variation under the both different TP schemes, has
effect on finances, more particularly where both varied
schemes were proceeded with simultaneously and the
final decision and conclusive effect is required to be
finalized simultaneously.
(f) As per the Land Disposal and Price Fixation Committee of
AUDA, the authority has determined the values of both
lands, wherein with respect to land of FP No. 65 amount
of Rs. 1,38,150/- per sq. mtrs, was determined totaling to
Rs. 64,17,106,750/-, whereas for part of FP 100 Paikee
amount of Rs. 1,70,410/- per sq. mtrs, was determined
totaling to Rs. 79,15,54,450/-
(g) That, on consideration of valuation also, the petitioner
(Nidhi Society) is offered more valuable and advantageous
marketable land, as apposed to their holding under the
principal TPS.
(h) Therefore, for the same area 4645 sq mtrs., the location,
valuation along with increments are substantially
different. That, in absence of securing amount, it would
not be in interest of the authority, for having such a
unilateral/ partial implementation, more particularly
where the finances and the proceeds are required to be
used for providing benefits and infrastructural facilities.
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(i) The respondent-authorities have never abdicated from
implementation of consequential measures for removal of
encroachment in part of FP 65, the possession of which
was to be given to Nidhi Society, which is apparent from
the pleadings filed by the both authorities i.c. AUDA &
AMC.
(j) The entire process of the varied scheme was on account
of Snehanjali and the authority is committed to remove
their encroachment. The intention of authority was
therefore to press both modes at the same time i.e.
simultaneously, so that if amount from Snehanjali is not
paid, the authority is committed to remove the
encroachment possession as per the court's order.
(k) That, upon progression of the town planning scheme with
the participation of the parties along with the subsequent
event of sanctioning of the scheme under the Act, the
relief for implementing of the resolution dated 2.01.2010
is not maintainable, moreover where measures have also
been taken for removal of encroachment by Snehanjali.
24. Having heard learned advocates appearing for respective
parties and having gone through the material on record, while
dealing with the controversy, it seems that some chequered
history of this litigation deserves to be considered in a
summarized form.
(1) It is not in dispute that the petitioner society is the owner
of the land bearing Final Plot No.65 of Town Planning Scheme
No.1 (Thaltej) of an area admeasuring 4645 Sq. Mtrs., the said
land became part of Town Planning Scheme in exercise of power
under Section 65 of the Gujarat Town Planning and Urban
Development Act, 1976 ("Act of 1976" for short). A scheme was
sanctioned by the State Government which is also not in
dispute. Along with this portion of land, Survey No.89, Survey
No.109, Survey No.110/1 and Survey No.110/2 of village
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Thaltej, Taluka Daskroi were also forming part of Thaltej Town
Planning Scheme No.1 and same were given O.P. No.10, totaling
area 47450 Sq. Mtrs., against which, three Final Plots were
allotted, being Final Plot Nos.34, 57 and 65, admeasuring 6787
Sq. Mtrs., 6010 Sq. Mtrs. and 20434 Sq. Mtrs. respectively. The
aforesaid Survey No.89 was admeasuring 19627 Sq. Mtrs.,
Survey No.109 admeasuring 12642 Sq. Mtrs., Survey No.110/1
admeasuring 7588 Sq. Mtrs. and 110/2 admeasuring 7588 Sq.
Mtrs., against which the afore-mentioned three Final Plots were
allotted.
(2) It appears from the record and assertion of the petitioner
that the original owner of Final Plot Nos.34 and 57 had entered
into a sale deed with Tulsi Park Co-operative Society and the
original owner also entered into the sale deed with Tulsi Park Co-
op. Society in respect of part of the land admeasuring 15789 Sq.
Mtrs. of Final Plot No.65 (which was total admeasuring as 20434
Sq. Mtrs.). On this portion, Tulsi Park Co-operative Society Part-
1, 2 and 3 are formed and construction is said to have been put
up. It further appears that as regards the petitioner society, they
have entered into a sale deed with predecessor in title in respect
of remaining portion of land of Final Plot No.65, i.e. admeasuring
4645 Sq. Mtrs. of Town Planning Scheme No.1 in the year 1996,
and became owner of the said portion of the land to that extent.
So far as Final Plot Nos.34 and 57 are concerned, the possession
of the said plots were already handed over to said Tulsi Park Co-
op. Society, whereas in respect of Final Plot No.65, out of total
land admeasuring 20434 Sq. Mtrs., possession of 15789 Sq.
Mtrs. of land was only handed over to said Tulsi Park Co.op.
Society and remaining portion of 4645 Sq. Mtrs. which was
purchased by the petitioner society, but since the said portion
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was unauthorizedly and illegally possessed and construction was
put up by one Snehanjali Co-op. Society, possession of this
portion admeasuring 4645 Sq. Mtrs. was not handed over to the
petitioner society despite Town Planning Scheme was already
sanctioned under Section 65 of the Act of 1976.
(3) Since actual afore-mentioned portion Final Plot No.65 was
not handed over, the petitioner has filed Special Civil Application
No.12749 of 2003 before this Court against the respondent
AUDA for implementation of the Town Planning Scheme, so as to
see that possession be handed over to the petitioner society of
the said portion of Final Plot No.65. It appears that during
pendency of the said petition, respondent AUDA issued notice
under Section 68 read with Rule 33 to the afore-mentioned
Snehanjali Co-op. Society, which illegally and unauthorizedly
was in encroachment of the said portion of land sanctioned
under Town Planning. But, despite notice, possession was not
handed over instead said Snehanjali Co-op. Society filed Special
Civil Application No.1931 of 2005 and both the petitions, i.e.
Special Civil Application filed by Snehanjali Co-op. Society and
the petition filed by the petitioner society came up for
consideration before the Court in the month of October 2005 and
the Hon'ble Court was pleased to dispose of both the petitions,
vide detailed judgment and order dated 20.10.2005, whereby in
Special Civil Application No.12749 of 2003 filed by the petitioner
a direction came to be issued upon the AUDA to implement the
Town Planning Scheme (Thaltej) No.1 (Final) by handing over
vacant possession of Final Plot No.65 and consequently, was
pleased to dismiss the petition file by Snehanjali Co-op. Society,
i.e. Special Civil Application No.1931 of 2005. The said detailed
judgment and order has clearly mentioned that the Special Civil
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Application filed by the petitioner society is allowed, whereas the
Special Civil Application filed by Snehanjali Co-op. Society came
to be disposed of. Operative part of the said order, since relevant,
the Court deems it proper to reproduce hereunder:-
26. For the reasons as stated above, Special Civil Application
No.1931 of 2005 fails and the said is required to be
dismissed and is accordingly dismissed. Rule is discharged.
Ad interim relief granted earlier, if any stands vacated
forthwith. However, there shall be no order as to costs.
So far as Special Civil Application No.12749 of 2003 is
concerned, it is allowed. Respondent AUDA is directed
to implement the Town Planning Scheme, Thaltej No.1
(final) by handing over the peaceful and vacant
possession of entire F.P.No. 65 (inclusive of original
survey No.113/2) to the petitioner of said Special Civil
Application and the said exercise be done within a
period of four months from the date of receipt of this
order. Rule is made absolute to the aforesaid extent.
However, there will be no order as to costs.
(4) The aforesaid direction issued was clearly suggesting that
at the relevant point of time, in the year 2005 itself, the
respondent AUDA was directed to implement the Town Planning
Scheme No.1 (Final) by handing over the peaceful and vacant
possession of the portion of Final Plot No.65 (inclusive of original
Survey No.113/2) to the petitioner and the said exercise was
specially directed to be undertaken within a period of four
months from the date of the said order, i.e. 20.10.2005. In the
said order, it has been specifically mentioned that so far as the
petition filed by Snehanjali Co-op. Society is concerned, same is
dismissed and interim relief, if any, stands vacated forthwith.
(5) Now, this order passed by learned Single Judge was
carried in appeal by Snehanjali Co-op. Society along with other
Letters Patent Appeal Nos.1220 of 2006 and 1221 of 2006. Both
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these appeals came up for consideration before the Division
Bench of this Court and after long drawn hearing, by detailed
judgment and order dated 13.8.2008, the Division Bench was
pleased to dismiss the Letters Patent Appeals in limine in which
it was clearly observed upon analysis of the material on record
that indisputably, Snehanjali Co-op. Society has made
unauthorized and illegal construction over the land of Final Plot
No.65 and it was also observed that the claim of the petitioner
society over Final Plot No.65 is wholly justified, an operative part
whereof the Court deems it proper to reproduce hereunder, as is
very relevant to the controversy in question.
The above referred facts are gathered from the records and are
not disputed. Indisputably, the appellant Snehanjali Society
has made unauthorized and illegal construction over the land
of final plot No. 65. The claim of the petitioner - Nidhi Society
for vacant possession of final plot no. 65 is wholly justified. The
learned Single Judge has rightly directed the Authority to hand
over vacant possession of the final plot No. 65 to the petitioner-
Nidhi Society. As to the claim of the appellant-Snehanjali
Society over the plot No. 68, as discussed hereinabove,the
appellant has failed to establish the title over the final plot No.
68 claimed by it. Nevertheless, as recorded hereinabove, Civil
Suit No. 139 of 1990 in respect of the construction made by the
Snehanjali Society over the final plot no. 65 is pending.
As recorded hereinabove, the impugned Notification dated 23rd
April, 2001 was issued to rectify the mistake committed in
respect of lands Survey No. 113/1 and 113/2 of village-Thaltej.
The said Notification does not give cause of action to the
Snehanjali Society.
For the aforesaid reasons, we find no substance in either of the
above Appeals. No case for interference is made out. The
Appeals are dismissed in limine. Civil Applications stand
disposed of.
At the request of learned advocate Mr. Goswami, it is directed
that the offending construction put up by the appellant-
Snehanjali Cooperative Housing Society over the land final plot
No. 65 may not be demolished for a period of eight weeks from
today.
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(6) It is also clearly evident from the record that said judgment
and order passed by the Division Bench of this Court was
carried further before the Hon'ble Supreme Court. But, vide
order dated 15.10.2008, Hon'ble the Apex Court was pleased to
dismiss the Special Leave Appeals filed by the aggrieved persons,
including Snehanjali Co-op. Society. Orders dated 15.10.2008 as
well as 2.3.2009 are clearly indicating the disposal of Special
Leave petitions in the case of Snehanjali Co-op. Society
(7) Thus, the aforesaid proceedings which have attained
finality right up to the Hon'ble Apex Court are revealing clearly
two situations; (1) that entitlement over Final Plot No.65 of the
petitioner society has attained finality and Snehanjali Co-op.
Society's occupation over sanctioned portion of the land of Final
Plot No.65 is found to be unauthorized and illegal and (2) that
the respondent AUDA authority was under a clear obligation to
implement the scheme which has attained finality.
(8) Despite the aforesaid circumstances, it appears that
though long drawn litigation has ended clearly in favour of the
petitioner society, unfortunately, the issue has been dragged on
by the authority in such a manner that even upto year 2016,
petitioner society was not in a position to get actual allotment of
Final Plot No.65 to the extent of the land admeasuring 4645 Sq.
Mtrs. under Town Planning Scheme No.1. During this entire
situation, it appears that the authority contemptuously and
miserably has failed to finally allot the portion of the land to the
petitioner society despite entire litigation has ended in favour of
the petitioner society upto the stage of the Hon'ble Apex Court
and again on account of usual bureaucratic approach, the
petitioner was compelled to knock the doors of this Court for
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seeking the reliefs even for implementation of the resolution
dated 2.1.2010 in its true letter and spirit, so that ultimately the
allotment of the vacant land to the extent of 4645 Sq. Mtrs. can
be handed over even from Final Plot No.100/P to the petitioner
since sequence of events have taken place, in which via-media
was tried to be found by the authority. But, here it appears that
the authority has miserably given an eyewash to the petitioner
which again has dragged the petitioner to file the afore-
mentioned main petition, i.e. Special Civil Application No.14698
of 2016.
(9) The record indicates that after disposal of the proceedings
right upto the Hon'ble Apex Court, several deliberations took
place at the instance of the respondent authority pursuant to the
request made by the petitioner society, which society initially
constrained to issue legal notice on 9.3.2009 for implementation
of the Town Planning Scheme and the respondent authority gave
reply to the notice on 4.4.2009, informing that action will be
taken after the Code of Conduct period is over and then, a
communication was given to the petitioner society to attend the
meeting with Chief Executive Officer on 3.8.2009. A clear
assertion which is substantially not in dispute has indicated that
during the discussion of the said meeting, a tripartite agreement
was prepared on 7.9.2009, under which the land which was
allotted to the petitioner was sought to be placed in reservation
for Residential under Town Planning Scheme No.1 and amount
to be paid by Snehanjali Co-op. Society which was judicially
pronounced to be an unauthorized occupant and in response
thereto, the petitioner society to be allotted another vacant Final
Plot in Town Planning Scheme No.2 (Thajtej). The said draft
tripartite agreement was communicated to the petitioner and
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there was some correction whereby it was proposed that
respondent AUDA will get sanction the plan for construction on
the land which is to be allotted to the petitioner and same is
understood between the petitioner society and AUDA and after
everything is completed, petitioner society will put signature on
the said tripartite agreement. This eventuality is reflecting in the
communication dated 24.11.2009 (Annexure-J). Based upon
such understanding, which took place in the meeting as a
consequential steps, respondent AUDA passed a resolution
whereby the petitioner was to be allotted vacant land out of Final
Plot No.100 of Town Planning Scheme No.2 and resolution which
came to be passed based upon which even consultation took
place with Chief Town Planner by letter dated 3.2.2010 in view of
Section 41(1) of the Act, 1976 and pursuant thereto, a step was
taken on 25.3.2011 for declaration of intention under Section 41
of the Act.
(10) Pursuant to the said declaration of intention, a notice was
issued by AUDA to the petitioner for inviting objections and
suggestion in owners' meeting to be held by virtue of Rule 17.
The said notice was published in daily newspaper 'Sandesh' on
6.7.2011. The petitioner also filed suggestion and objection on
14.7.2011 and then the plan got prepared, indicating the land
for allotment, which is also earmarked. After the resolution
which was passed for declaration of intention, it is clearly
asserted that some officers from AUDA, namely Ms. Mamta
Verma (CEO), Ms. Munshi (Sr. Town Planning Officer -(STP), Shri
R.B. Joshi, Shri Bholuvalia and Shri Chaudhary and other
officers actually visited the site of the petitioner and the
petitioner society was also shown a land which is vacant,
identified and ear-marked by these officials. Subsequently, a
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draft scheme was sanctioned under Section 48 of the Act, in
which the petitioner was allotted Final Plot No.100/2 in Town
Planning Scheme No.2 (varied). Said draft scheme published
dated 1.10.2012 along with F-form and part plan have also been
annexed at Annexure-O (Colly.). Assertion of the petitioner
further indicates that Final Plot No.100 of Town Planning
Scheme No.2 was a large area, consisting of land admeasuring
23272 Sq. Mtrs. and entire plot is reserved for EWS Scheme,
except to the extent of the area of 5675 Sq. Mtrs., plot is already
built up where there are houses constructed and occupied by
third parties and only area of 5675 Sq. Mtrs., as indicated above,
remained vacant, out of which the petitioner is to be allotted the
land admeasuring 4645 Sq. Mtrs. and according to the
petitioner, land ear-marked in draft scheme is unfortunately
inadvertantly reflecting built up area and vacant land is shown
to be under EWS scheme by sheer mistake of the concerned
officer and as such, the petitioner requested to take steps in this
regard and made repeated requests on 16.6.2014, 21.7.2015 and
18.1.2016, ultimately requested for allotment of vacant Final
Plot No.100/2 and the authority has said that some steps are in
contemplation.
(11) Entire process, as aforesaid, was undertaken by
respondent AUDA, appears to be with a clear indication to avoid
contempt proceedings against it to be initiated by the petitioner
society and intention of the authority was to see that steps be
taken in such a manner so that the petitioner does not get
vacant plot despite aforesaid clear understanding between the
petitioner society and AUDA authority and to see that no further
steps also be taken against Snehanjali Co-op. Society despite
orders passed which came to be confirmed right upto the Hon'ble
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Apex Court. The authority appears to have dragged on the issue
for quite some time and by that time, the area came within the
limits of Ahmedabad Municipal Corporation and it is the say of
the respondent authority itself that respondent AUDA has given
the land to the Municipal Corporation, hence the petitioner made
a representation to Ahmedabad Municipal Corporation also to
the effect that the land of Final Plot No.100/P which is open to
be allotted to the petitioner but under the guise of identification
issue of the land, the petitioner was sent pillar to post and inter-
se authorities were shifting the burden but net result is that
despite series of representations made by the petitioner, actual
allotment has not taken place. It is not in dispute that petitioner
society is entitled to have allotment of land admeasuring 4645
Sq. Mtrs. in any case either from Final Plot No.65 or from Final
Plot No.100/P, as indicated above, and secondly, the possession
was deprived throughout till date under one reason or the other
though entitlement of the petitioner has attained finality right
upto the Hon'ble Apex Court.
25. In light of the aforesaid factual scenario, which is
prevailing on record, initially, on 2.9.2016, the Coordinate Bench
of this Court was pleased to issue notice calling upon the
respondent authorities to justify their inaction and on
12.9.2016, Hon'ble Court was pleased to grant interim relief in
terms of para 15(B), which as under as under:-
[B] Pending admission, hearing and final disposal of this
petition, this Hon'ble Court may be pleased to direct the
respondent- AUDA, to forthwith reply to the Ahmedabad
Municipal Corporation instructing them with respect to
the land bearing Final Plot No100-P, T.P. Scheme
(Thaltej) No.2 (Varied); qua land admeasuring 5675 sq.
meters which is vacant land and ear-marked in the map
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(Annexure-N) from creating any encumbrances or any
third party right in respect of the said vacant land,
which is allotted to the petitioner- society.
26. The matter then adjourned from time to time and in
between, when the petition came up for consideration on
20.3.2018. During pendency of the petition, both the sides
invited an order in the form of direction, which reads as under:-
[1] Considering the grievance which is voiced out in the present
petition, learned AGP has on instructions stated that at
present the issue is pending before Town Planning Officer, as a
result of this, if the petitioner will approach Town Planning
Officer to ventilate his grievance within a period of 10 days
from today, appropriate decision will be taken by the Town
Planning Officer after scrutiny of every material and after
considering the representation of the petitioner.
[2] Considering these submissions, Mr.Prashant Desai, learned
senior counsel for the petitioner, under instructions, has
shown inclination to approach the Town Planning Officer
within the aforesaid time prescribed. Hence, following
directions are ad invitum during the pendency of the present
petition:
(i) The petitioner shall approach the Town Planning
Officer within a period of 10 days from today with a request to
consider the grievance and the Town Planning Officer is
directed to look into the grievance of the petitioner and shall
scrutinize the representation and shall take appropriate
decision preferably within a period of two months from the
receipt of writ of this Court and/or within a period of two
months from date of representation by the petitioner and the
decision which will be taken shall be placed on record of
present petition.
(ii) If found necessary, the Town Planning Officer shall
call upon the respondent No.3 as well as Corporation if need
be so, as to take ultimate decision on the issue which is to be
represented before him.
[3] With these observations, the matters are kept pending and
postpone to 16.07.2018 for further hearing. Direct service is
permitted.
27. Later on, having realized the situation, nothing further
precipitated, the Court called upon the officer to remain
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personally present and then on Civil Application No.1 of 2016,
communication appears to have been placed before the Hon'ble
Court and as such, the Coordinate Bench was pleased to direct
the Ahmedabad Municipal Corporation to submit report and
then for quite some time, the matter was tried to be rotated by
authority. The Court on 2.7.2019, gave a last opportunity and
the matter was adjourned to 3.7.2019, wherein learned senior
counsel Mr. R.R. Marshall appearing for respondent AUDA
stated before the Court to keep the concerned officer present to
appraise the Court about status of Final Plot No.100/2 allotted
to the petitioner in the final Town Planning Scheme No.2
(Thaltej) (Second Varied). Said order dated 3.7.2019 reads as
under:-
Learned Senior Counsel Mr.R.R. Marshall for the AUDA
states that he shall keep the concerned Officer present to
appraise the Court about status of final plot No.100/2
allotted to the petitioner in the final town planning scheme
No.2 Thaltej (Second Varied).
Mr.Deep D. Vyas, learned advocate appearing for the
respondent No.4 shall also keep the concerned Officer of the
Town Planning department present before the Court.
Put up on 09.07.2019.
28. It further appears that thereafter, again the Court was
constrained to direct the authority that if no decision is taken on
or before 23.7.2019, Chairman/ Chief Executive Officer (CEO)
shall remain present before the Court and then on 23.7.2019,
learned counsel asked time to resolve the issue. Then, on
29.7.2019, the Court expressed its displeasure upon the
authorities' counsel for showing disrespect to the orders and
directed the Chairman, Ahmedabad Municipal Corporation to
look personally in the matter and take appropriate decision to
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resolve the issue. Such displeasure is very much reflecting in the
said detailed order dated 29.7.2019. Then, again the matter
came up for consideration on 7.8.2019, in which after observing
the chronology of events, which took place during passage of
time, a hope was generated on account of the efforts made by the
then Commissioner of Ahmedabad Municipal Corporation and as
such, again direction was issued upon the authority to take
appropriate decision on proposal made by Ahmedabad Municipal
Corporation for preparing the preliminary scheme and forward
the same to the State Government for necessary sanction. This
was in view of the efforts which were made for resolving the issue
at the earliest. The said order dated 7.8.2019 since relevant,
reads as under:-
1. Pursuant to the order passed by the Court on 29.07.2019,
Mr.Vijay Nehra, Municipal Commissioner, Ahmedabad
Municipal Corporation (hereinafter referred to as 'AMC') has
filed the affidavit suggesting two modes to resolve the issue viz.
(1) to allot the requisite open portion of land from Final Plot
No.100/1 of Town Planning Scheme (hereinafter referred to as
'TP Scheme') No.2 Thaltej (Second varied) to the petitioner
society by changing the designation of the said open portion of
the land to "Sale for Residence' purpose or (2) after removing
the illegal encroachment made by the Snehanjali Society on
Final Plot No.65 of TP Scheme No.1quote entire order dated
7.8.2019 Thaltej (First Varied), to allot the same to the
petitioner society. He has also stated that with a view to see
that the petitioner society is allotted the the required plot of
land at an early date, for time being, the AMC has decided to
press into service both the aforesaid modes. He has further
stated that AMC has already issued notices on 02.08.2018 to
Snehanjali Society and its members for removal of illegal and
unauthorised construction and in addition thereto, the AMC
has sought guidance from the State Government in Urban
Development Department as per communication dated
02.08.2019. Another communication dated 02.08.2019 has
also been addressed to the concerned Town Planning Officer of
both the Town Planning Schemes i.e. Town Planning Scheme
No.1 Thaltej (First Varied), and Town Planning Scheme No.2
Thaltej (Second Varied) requesting the Town Planning Officer
for doing the needful by reallocating and reserving the
earmarked open portion of the Final Plot No.100/1 for "Sale for
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
Residence" purpose, which was originally reserved for SEWSH.
2. It is submitted by learned Senior Advocate Mr.R.R.Marshall for
the respondent No.3 AUDA and learned Advocate Mr. D.D.Vyas
for the respondent No.4-AMC that the AMC and AUDA shall
make all efforts for resolving the issues involved at the earliest
as stated in the affidavit, however, the proceedings of both
Varied TP Schemes are as such with one Town Planning
Officer, and he has been entrusted with the statutory powers to
prepare the preliminary scheme and submit the same to the
State Government as per section 64 of the Town Planning Act,
and that the said process may take sometime.
3. Learned AGP Ms. Jyoti Bhatt, under the instructions of
Ms.Teresa T. Devasia, Senior Town Planner, states that the
Town Planning Officer in consultation with Chief Town Planner
and other concerned officers shall process the proposal of the
AMC and send the same to the State Government at the
earliest.
4. The Court appreciates the efforts made by the Commissioner,
Municipal Corporation as stated in his affidavit. In view of the
fact that the petitioner-Society has been deprived of their Final
Plot since last more than 10 years, the matter deserves to be
given utmost priority at the end of the Town Planning Officer
and the State Government. Hence, it is directed that the Town
Planning Officer shall take appropriate decision on the
proposal made by the AMC for preparing the preliminary
scheme and forward the same to the State Government for
necessary sanction within eight weeks from today. It is further
directed that the State Government in Urban Development
Department shall take appropriate decision as expeditiously as
possible but not later than eight weeks from the date of receipt
of the Preliminary Scheme, that may be forwarded by the Town
Planner Officer. Put up on 11th November, 2019 as prayed for.
29. Despite the aforesaid observations which have been
made, expressing deprecation as well as hope to give quietus to
the issue, the Court time and again adjourned the matter so as
to see that some steps be taken for allotment to the petitioner
society, but then, when the matter finally came up for
consideration, unfortunately, a stiff contest suddenly made by
respondent authority ignoring all above directions.
30. In the light of aforesaid background, what is clearly
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
emerging is that not only earlier orders of the Courts are not
obeyed in true spirit but even order dated 7.8.2019 has also not
been adhered to. This amounts to clear disrespect to the Court,
amounts to contempt of Court as well. Hence, now in the light of
aforesaid situation, legal proposition propounded also deserves
to be considered.
31. It is a trite law that once Town Planning Scheme has
become final, the concerned area Development Authority or
appropriate authority has to implement the same and no
interception can be made even by granting any injunction from
performing its obligation to implement the Scheme since the Act
has imposed statutory obligation upon it.
32. This has been propounded by one of the decisions of the
Hon'ble Apex Court in the case of N. Nanalal Kiklawala And Anr
vs State Of Gujarat And Ors. reported in (2005) 12 SCC 649, and
as such, granting of any relief of restraint tantamount to restrain
the authority from performing its statutory duty cast upon it for
implementation of Town Planning Scheme and as such, the
authority deserves to be allowed to carry out the process steps
under Section 68 of the Act read with Rule 33 of the Rules.
33. Further, it is also a sound proposition that the provision
contained under Sections 68 and 69 shall mutatis mutandis
apply to the sanctioned draft scheme as if sanctioned draft
scheme were a preliminary scheme. Under the circumstances,
when the land in question is forming part of the Town Planning
Scheme by virtue of Section 48A(i), said land shall vest
absolutely in appropriate authority free from all encumbrances
on the date on which the draft scheme is sanctioned under
Section 48(2) of the Town Planning Act and thereafter, orders are
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to be passed in exercise of power under Sections 48A, 67, 68 of
the Town Planning Act and Rule 33 of the Town Planning Rules
and same cannot be said to be either illegal or contrary to the
provisions of the Act. The action, if initiated, is in consonance
with the provisions of the Scheme of the Act, particularly in view
of Section 48A.
34. Recently, the Coordinate Bench of this Court was dealing
with an issue about taking step by issuance of notice under
Section 68 and Rule 33 of the Town Planning Act and the Rules,
based upon the decision delivered by the Hon'ble Apex Court in
the case of Tukararam Kana Joshi Vs. MIDC reported in (2013)
1 SCC 353 has also opined and come to the conclusion that
when the land has absolutely vested in appropriate authority
and which is required for the purpose mentioned in Section 48 of
the Act, Court cannot interfere with such process of Town
Planning and has observed on the basis of the decision of
Hon'ble Apex Court that a case under the land acquisition Act in
which without paying compensation, land of the petitioner
sought to be acquired, the Hon'ble Apex Court has held that
concerned affected person cannot be deprived of his property
without first rehabilitating him. However, sum and substance is
that once the land is vested in an appropriate authority, said
process cannot be intercepted. While dealing with the question
related to modification of preliminary Town Planning Scheme, it
has been observed in one of the decisions delivered by the then
Coordinate Bench, in the case of Kishanbhai Hargovandas Patel
Vs. State of Gujarat reported in 2010 (0) AIJEL-HC 223273 and
has observed that if modification of preliminary Town Planning
Scheme suggested by Town Planning Officer is to take place,
then in that case opportunity to the affected person must be
given, else the same would turnout to be an error or irregularity
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
in such implementation.
35. Learned senior advocate Shri Prashant G. Desai has also
strenuously relied upon one of the decisions delivered by learned
Single Judge, which was also carried before the Letters Patent
Bench and has drawn the attention to few observations
contained in the decision dated 23.6.1999, decided in Special
Civil Application No.4004 1984 and has emphasized that in case
of inability to handover the land in question allotted, an
alternative compensation will have to be paid by determining it
on the basis of prevailing market value as of now and almost in
similar situation when the authority was not in a position to
handover the land as an alternative, in aforesaid case, learned
Single Judge directed to determine the compensation in
accordance with law on the basis of the market value as of now
and pay the same to the concerned petitioner and petition came
to be disposed of. The relevant observations contained in para 7
thus reads as under:-
"7. The petition is accordingly allowed. Rule is made absolute.
Respondents are directed to pay the petitioner the
compensation for the land admeasuring 3370 Sq. Mtrs.
yards out of the land bearing Final Plot No.314 in Town
Planning Scheme No.20 (Gulbai Tekra) by determining the
compensation in accordance with law and on the basis of
the market value of the land as of now. There shall be no
order as to costs."
36. The aforesaid view was carried further by Ahmedabad
Municipal Corporation in an appeal on the premise that the said
direction runs contrary to Sections 71 and 72 of the Act and the
Division Bench while affirming the decision delivered by learned
Single Judge disposed of the appeal and confirmed the direction
issued by learned Single Judge and dismissed the appeal filed by
the Corporation, being Letters Patent Appeal No.1312 of 1999.
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
37. Yet, another decision of Division Bench which has been
brought to the notice by learned Senior advocate Shri Desai is
dated 22.2.2002 passed in Misc. Civil Application No.263 of
2002, wherein the Corporation was not in a position to remove
encroachment and vacate the land to fulfill its obligation and in
such inability of the Corporation, peaceful and vacant
possession of another Final Plot in lieu of what was allotted was
resolved and accordingly the Division Bench in that Misc. Civil
Application has directed the Corporation to act accordingly and
after completion of the legal formalities and necessary process,
handover the possession of the property immediately and said
exercise was directed to be completed within a period of four
weeks and it has been stated before the Court that said
directions have been carried out by the authority. The relevant
observations contained in the said order of the Division Bench,
the Court deems it proper to quote hereunder:-
"...... as per the agreed terms in view of the inability of the
Corporation to hand over possession of the land, a request
made by the Corporation was accepted nd it was agred that
physical, peaceful and vacant possession of Final Plot
No.235 admesuring 2816 Sq. Mtrs. yds. of T.P. Scheme
No.5 in Section VII situated at Ahmedabad be handed over
in lieu of Final Plot No.207 (Part) admeasuring 3068 Sq.
Mtrs. yds. in T.P. Scheme No.8. Before us, it is also prayed
that direction be given to complete the legal formalities and
transfer title to the opponent Trust at the costs and
expenses of the Corporation. In view of this request, we
direct the Corporation to act accordingly and hand over the
possession of the property immediately. It is directed that
the formalities will be completed and report shall be made
to the Court within a period of 4 weeks. The matter stands
adjourned to 4 weeks."
38. In the light of the aforesaid factual matrix and in view of
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
the aforesaid settled proposition of law on the issue, it is quite
apparent from the record that here is a case in which the
petitioner despite successfully declared as entitled to have
allotment of land to the extent of 4645 Sq. Mtrs. under the Town
Planning Scheme and despite the same has been crystallized
right upto the Hon'ble Apex Court, still is languishing in
litigations and sent pillar to post by appropriate authority
without there being any actual allotment in right spirit. Despite
series of orders passed by the Courts in the present proceedings,
the authority has shown an audacity under one reason or the
other to deprive the petitioner from actual allotment and made
an attempt probably to give shelter to unauthorized occupation
of Snehanjali Co-op. Society over Final Plot No.65. The action of
shielding the said society has gone to that extent that tripartite
agreement came to be prepared, steps have been taken pursuant
thereto and ultimate resolutions have been passed to allot the
land to the petitioner out of Final Plot No.100/2 of Town
Planning Scheme No.2 (Varied) (Thaltej), still actual allotment
appears to be far away, as no effective measures have been taken
by the authority. The authority's stand if to be viewed, same
appears to be contemptuous in nature, however since the
authority has shown an inclination to allot the alternative
portion to the petitioner and the petitioner has shown readiness,
the Court is not precipitating such issue any more, but
nonetheless, is of the clear opinion that concerned authority has
miserably failed to fulfill the statutory obligation cast under the
Act in respect of petitioner society and as such, it appears that a
case is made out by the petitioner strong enough to issue
direction of such a nature so that issue which has been
stretched beyond proportion can be put to rest.
39. At this stage, the Court has also surprisingly noticed the
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
stand of the authority intermittently taken during passage of
time in form of respective affidavits and has made an attempt to
take shelter of Land Disposal Policy for allotting Final Plot
No.100/2 by first mentioning as 'Sale for Residential' and then to
allot under the policy and for that purpose, an attempt is made
to impose huge financial burden to be paid in lieu of such
implementation, which otherwise was under obligation to
implement at a relevant point of time.
40. At this stage, further affidavit, which has been filed, on
20.9.2021 by one Chief City Planner of respondent Corporation
in which it has been asserted that in view of the Land Disposal
Policy, Price Fixation Committee of AUDA, i.e. respondent No.3
has determined the price in its meeting dated 14.8.2019. Price
for Final Plot No.65 was determined at Rs.1,38,150/- per Sq.
Mtr., for which total amount aggregate comes to
Rs.64,17,106,750/-, whereas price of part in Final Plot No.100
Paiki was determined as Rs.1,70,410/- per Sq. Mtr., and looking
to the area to be allotted to the petitioner, said portion valued at
Rs.79,15,54,450/- and it was also resolved to await sanction of
final scheme and undertake remaining procedure of allotment
thereafter. Said resolution was passed on 14.8.2019 by the
committee and while taking variation proceedings, respondent
AUDA addressed a communication dated 29.2.2012 for
demanding interim amount from Snehanjali Co-op. Society and
requested to file undertaking, but at that time, Snehanjali Co-op.
Society had not filed any undertaking, but only few members
had filed same on 9.3.2012. In that context, members of
Snehanjali Co-op. Society preferred Special Civil Application
No.14428 of 2019, challenging mere impugned notices dated
2.8.2019 and on 26.8.2019, an order of status-quo came to be
passed. But, then it has been clearly asserted in this affidavit
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
that both of the varied final Town Planning Schemes have been
sanctioned simultaneously on the same day by virtue of
notification dated 16.12.2020 and a stand is then taken that any
partial implementation, as sought for, would adversely affect the
finances and proceeds are required to be used for providing
benefits and infrastructure facilities and same would
prejudicially affect the public interest. This has come later on by
the authority.
41. Yet, another circumstance which is mentioned in one
another affidavit dated 10.2.2020, reflecting on Page 249, a
relevant portion in which on 5.9.2019, Town Planning Officer
declared its intention regarding preliminary Town Planning
Scheme, Thaltej-1 (first varied) and Thaltej-2 (second varied),
under Section 52(1) of the Act, and same was submitted before
the State Government for its sanction on 17.9.2019 and sanction
is accorded on 10.10.2019 by virtue of notification, which
reflects in the copy of Form-F, and part plan which are attached
to the affidavit as Annexure-R10 (collectively). This Court
normally under the aforesaid clear background ought to have
granted a specific direction, but one surprising move has
desisted the Court from doing so, which circumstance is also not
possible to be ignored by this Court.
42. The main matter, as per the request of both the sides, has
been heard at length and after completion of exhaustive
argument by both the sides, the matter was kept for orders. On
that day, main Special Civil Application No.14698 of 2016 along
with Civil Applications were also heard, but simultaneously, one
another Special Civil Application No.14428 of 2019 was on the
board, which has been preferred by members of Snehanjali Co-
op. Society and challenge in the said petition was mere notice
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issued by the authority dated 2.8.2019 and sought a relief to
carry out further process of settlement and resolution in
question which was passed by AUDA for regularizing the land of
the petitioner society and this matter was not heard as no
submissions were made, but recently, the Coordinate Bench
passed an order on 22.4.2022 on an application moved by
Ahmedabad Municipal Corporation for vacating the order of
status-quo granted by virtue of order dated 26.8.2019 and while
dealing with such application, the Coordinate Bench was pleased
to pass an order admitting the matter and confirming the order
of status-quo and the order is stated to be kept on record of
Special Civil Application No.14698 of 2016 and this order is
brought to the notice by learned senior advocate Mr. Prashant
Desai. The main matter was lastly on board on 29.10.2021,
which was adjourned to 16.11.2021 and then aforesaid order
dated 22.4.2022 came to be passed and contents thereof since
relevant, the Court deems it proper to reproduce the said order
hereunder:-
"1. RULE.
2. This petition has some history, wherein the litigation was on
account of cross entry between the revenue records, which
pertain to Survey Nos.113/1 and 113/2, which were
ultimately given Final Plot Nos.65 and 67, respectively.
3. The issue was plot of land of the society, wherein the
petitioners are residing existed, was actually a plot of land,
which ought to be running in the name of an another society
being Snehanjali Society Cooperative Society. The litigation
has reached till Apex Court and ultimately with a view to
save the residential construction of the existing society, a
tripartite party agreement was entered into in the year 2012.
Pursuant there to, Town Planning Authority viz. AUDA had
taken a benevolent view and a separate Final Plot was
allotted to the rival Nidhi Society. The rival Nidhi Society has
also filed a petition, which is reported to be reserved for
judgment.
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
4. Today, the issue has arisen out of the proceedings sought to
be initiated by the Ahmedabad Municipal Corporation on the
ground that the petitioner-society (Snehanjali) have failed to
honour the tripartite agreement under which they were
required to make the payment so that whatever expenditure
is incurred for accommodating Nidhi Society is taken care of.
5. Learned Senior Advocate for the petitioners states that
earlier, as per the tripartite agreement, the valuation, which
was carried out was at the jantri rate, which was prevailing
in the year-2008, which was to the tune of Rs.3,21,60,000/-
out of which 25% was to be deposited, which came to be
Rs.92,90,000/-.
6. On account of internal problem of the residence, the said
amount, at the relevant time, could not be deposited in the
entirety, however, as far as possible, the actual residence of
the society had handed over respective cheques to the
corporation, which are not realized by the corporation as on
date.
7. Learned Senior Advocate makes a statement that not only
the agreed 25%, but the entire amount i.e. required to be
deposited as per the jantri rate prevailing in the year 2008,
the petitioners will jointly deposit with the respondent-
corporation on or before 31.10.2022.
8. In the meantime, status quo granted by this Court vide
order dated 26.08.2019 is confirmed.
9. The order passed in Special Civil Application No.14698 of
2016 be also placed on record of this petition.
43. In view of the aforesaid order, which is brought to the
notice of the Court, it appears that Ahmedabad Municipal
Corporation has taken a curious move just to create another
hurdle in the way of the petitioner society to get effective relief
and by taking shelter of this order, now it appears that a further
complication is tried to be created to see that no effective
implementation can take place to the petitioner despite long
drawn litigation successful in favour of the petitioner. The Court
seriously deprecates such move of the authority and would not
recognize the same as fair stand in any manner.
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44. Be that as it may, since the Court has heard the matter at
length, looking to the peculiar background of facts, as stated
herein-above, the Court is of the opinion that petitioner society is
entitled to actual physical allotment of Final Plot as issue
crystallized above and as such, the authority is under an
obligation to discharge its function of implementation in true
letter and spirit. It may not be out of place to mention that while
carrying out the directions which are being issued by this Court
while disposing of the present petition, respondent authority has
to bear in mind the fact that entitlement was already established
of the petitioner society way back in October 2005 itself, which
has been affirmed by the Hon'ble Apex Court in October 2008,
and from that day, respondent authority was under an
obligation to obey the orders and to fulfill its statutory
obligations to allot the land to the petitioner society. So. even if
the authority wants to apply the Land Disposal Policy, which is
not under challenge by the petitioner, determination of
contribution must be keeping in view of these years in which
entitlement of petitioner is crystallized finally. Hence, the Court
deems it proper to pass the following order, which would meet
the ends of justice.
:: O R D E R ::
(1) Present petition is ALLOWED by directing the
respondent authority to implement the Scheme, which
is stated herein-above, and handover clear and vacant
possession of land to petitioner society to the extent of
the area admeasuring 4645 Sq. Mtrs. either from Final
Plot No.100-P or from Final Plot No.65, whichever is
feasible, and said exercise shall be completed within a
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period of THREE MONTHS from date of receipt of writ of
this Court.
(2) It is made clear that while carrying out this activity,
respondent implementing authority, i.e. Ahmedabad
Municipal Corporation, shall afford appropriate
opportunity to both societies, i.e. Nidhi Co-operative
Housing Society Ltd., and if suitable, to Snehanjali Co-
op. Society, for carrying out the said process and it is
also made clear that this Court has not expressed any
opinion with regard to the steps which may be taken by
the authority, but said steps shall be concluded without
fail within a period of THREE MONTHS, and the
respondent authority shall carry out its statutory
obligation strictly in accordance with law as has been
propounded and policy narrated herein-above.
(3) While carrying out this process, Corporation may also
take note of the order dated 22.4.2022, as the same is
ordered to be placed on record of present proceedings,
and after taking note of the same, it would be open for
respondent appropriate authority to take recourse of
alternative land for allotment to the petitioner and for
this purpose, it would be open for Corporation and also
desirable to extend an opportunity to Snehanjali Co-op.
Society whose stand would be subject to outcome of
Special Civil Application No.14428 of 2019, as stated to
be pending.
45. With the aforesaid observations and directions, petition
stands ALLOWED.
C/SCA/14698/2016 CAV ORDER DATED: 08/06/2022
46. In view of the main matter having been disposed of, no
orders deserve to be passed on the Civil Applications.
Accordingly, Civil Applications stand consigned to records.
Sd/-
(ASHUTOSH J. SHASTRI, J)
OMKAR
FURTHER ORDER
After pronouncement of order, learned advocate Mr. Deep D.
Vyas has requested to suspend operation of present order so as
to enable him to approach higher forum. But, in view of the
directions which are contained in the order and in view of the
fact that said request has been opposed by learned senior
counsel Mr. Prashant G. Desai, Court is not inclined to consider
the request. Accordingly, request stands rejected.
Sd/-
(ASHUTOSH J. SHASTRI, J)
OMKAR
