Gujarat High Court

Akramali Gafarbhai Rayin vs State Of Gujarat on 7 October, 2022

Bench: Sandeep N. Bhatt

    C/SCA/18401/2021                               CAV JUDGMENT DATED: 07/10/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 18401 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== AKRAMALI GAFARBHAI RAYIN Versus STATE OF GUJARAT ========================================================== Appearance:

MR BHARAT T RAO(697) for the Petitioner(s) No. 1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,3,4,5,6,7,8,9

DS AFF.NOT FILED (N) for the Respondent(s) No. 2 MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 3,4 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 07/10/2022

CAV JUDGMENT

1. Rule. Learned AGP Ms.Bhatt waives service of

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notice of rule for respondent no.1 and learned advocate

Mr.Nanavati waives service of notice of rule for

respondent nos.3 and 4.

2. This petition is filed for the following reliefs :

"34.(a) To admit and allow this petition;

(b) To issue a writ of mandamus or a writ in the nature of

mandamus or any other appropriate writ, order or direction

quashing and setting aside the order dated 29.11.2021 passed

by respondent no.4 for the reasons stated in the memo of

petition and in the interest of justice;

(c) Pending admission, hearing and final disposal of the

present petition, Your Lordships be pleased to stay the

execution, implementation and operation of order dated

29.11.2021 passed by respondent no.4 for the reasons stated

in the memo of petition and in the interest of justice;

(d) Your Lordships may grant ad-interim relief in terms of

prayer clause para 34(c) above;

(e) xxxx"

3. The brief facts giving rise to this petition, as

mentioned in the petition, are as under:

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3.1 That the petitioners are stall owners and such

construction is kachcha construction of tin shed fixed

with iron angles and plinth has been provided of cement

concrete; that the land bearing survey no.55 of mouje

Umarwada Taluka Dhoryasi, District Surat was in

possession of one Meghabhai Sodhabhai, Maniben Narsinh

and Mahendra Narsinh and Krishnakumar Agrawal and

Kazimbhai Chikuwala; that they have taken the said

land on lease basis; the land, in fact, belongs to Parsi

Panchayat which was in possession of Meghabhai

Sodhabhai, Mahendra Narsinh and Maniben Narsinh and

from them the petitioners have taken the land

admeasuring 20,133 sq.mtrs.; in all there are 103 sheds

erected and allotted to the members who have contributed equal share for erection of tin sheds; for

administration of the market, a society was registered in

the name of the Surat Wholesale Fruit Vecharanaoni

Sahakari Mandali Ltd. which was registered vide

registration no.2964 dated 20.8.1996; Mahendra Narsinh

and Maniben Narsinh have got land by virtue of tenancy

rights; since 1992 the petitioners and other members of

the Surat Wholesale Fruit Vecharanaoni Sahakari

Mandali Ltd. are doing business of wholesale fruits and

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nobody has raised any objection at any point of time;

that even the Parsi Panchayat has never given any

notice to the petitioners nor taken any steps nor entered

into any correspondence.

3.2 It is further stated that the Government of

Gujarat declared intention to frame T.P.Scheme No.34

(Magob-Dumbhal); that behind the land on which the

wholesale market is situated, there is a khadi (water

body) from where excess rain water is passing and meets

the sea; that the documents of lease and agreements

executed with the members and persons who are in

possession of land bearing Survey No.55 of Mouje

Umarwada upon which present wholesale fruit market is constructed are drowned in the flood of 2006 and all the

documents are drowned in the said flood and there was

water for three days more than 10 feet water where the

petitioners' shops were located;

3.3 It is further stated that the Government of

Gujarat has extended the limits of Surat city and village

Umarwada and nearby villages have been included in the

area of Surat Municipal Corporation and in the year

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1999 TP Scheme (Magob-Dumbhal) was approved by the

Government of Gujarat and final T.P.Scheme has been

approved by the government on 3.7.2012; that village

Umarvada and nearby villages have been included in the

area of Surat Municipal Corporation; that the members

of the society have been given electric connection by

Torrent Power Ltd (erstwhile Surat Electricity Co.Ltd.)

and all the sheds are having their separate electric

connection; that Surat Municipal Corporation has been

issuing bills for property tax to all the shed

owners/petitioners; that the respondent no.3 Surat

Municipal Corporation has never issued any notice from

1991 till 2021 to the petitioners for the so called illegal

construction under the Gujarat Provincial Municipal Corporation Act (`GPMC' Act) because these constructions

are temporary in nature and maximum space is required

to be kept open for ingress and outgress of vehicles.

3.4 It is further stated in the petition that when

the T.P.Scheme has been proposed and processed, land

bearing survey no.55 admeasuring 20,133 sq.mtr. which

is owned by Surat Parsi Panchayat and which was in

possession of the third party, the said land has been

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given original plot no.33 and thereafter F.P.No.19 has

been given admeasuring 10,040 sq.mtrs.; that the said

F.P.No.19 is given to Mahendra Narsinh, Maniben

Narsinh and Surat Parsi Panchayat; that the Town

Planning Officer has carved out F.P.No.49 from bay by

reclamation which was given original plot nos.28, 29 and

30 and F.P.No.49 has been given admeasuring 9750

sq.mtrs.; that the original plot nos. 28,29 Final Plot has

not been given but final plot has been given against

O.P.No.30; that there was no original survey number;

that in the remarks column it is stated bay deduction

taken in the original plot allocated to Surat Municipal

Corporation including into public purposes; the bay

continue in the host mode is suggested; that F.P.No.49 has not been carved out from survey no.55; that final

plot no.49 is carved out by reclamation of bay and it

was never part of survey no.55 at any point of time;

that the sheds/shops of the petitioners are kutcha

construction made in the year 1992-93 and as per the

information of the petitioners, draft T.P.Scheme is

sanctioned in the year 1999; that when the draft scheme

has been approved, petitioners were there on the land in

question and there were shops constructed; that the

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Town Planning Officer has to mention that though

ownership of land is of Parsi Panchayat, the fruit

market is in possession of the land in question; that in

the present case, the Town Planning Officer has not

given notice to the petitioners.

3.5 It is further stated that the Parsi Panchayat

has filed Regular Civil Suit No.196 of 1994 in the year

1994 where it did not join fruit market as party

defendant but joined Kamruddin Shahbuddin, Jalauddin

Abdul Aziz, Akbarbhai Allauddin, Meghabhai Sodhabhai

as defendants; that the said persons were never in the

market and they did not have any shops in the market;

that in the said suit, the Parsi Panchayat also filed application Exh.5 and the court passed order dated

31.1.1994 to maintain statusquo in respect of the

disputed property, more particularly, described in

paragraph 6(1) of the injunction application; that the

status-quo has been absolute on 17.12.1994; that in the

said suit, the defendants thereto filed reply on 21.4.1994;

that as the advocate for the defendants in that suit

retired from the matter, the learned trial Judge has

decided the said suit ex-parte and decreed the suit in

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favour of the plaintiff Surat Parsi Panchayat; that the

execution application has been filed by Surat parsi

Panchayat on 13.5.2016 in the court of Principal Senior

Civil Judge being Regular Darkhast No.4 of 2016; that

the Court has issued possession warrant on 4.7.2019 and

pursuant thereto, the police has given notice to the fruit

market that the members should not create problems of

law and order and let bailiff execute the warrant; that

the petitioners approached this Court by filing Special

Civil Application No.13664 of 2019 and the court passed

order on 6.8.2019 directing the parties to maintain

statusquo which is continued till date of filing of this

petition.

3.6 It is further stated that some of the fruit

market shop owners have filed Regular Civil Suit No.133

of 2021 in the Court of Principal Senior Civil Judge,

Surat in March, 2021 for declaration and injunction

against owners of land and Parsi Panchayat which is

also pending on the date of filing of this petition; that

in that suit, the Court Commissioner has carried out the

panchanama also; that the Parsi Panchayat wanted to

take possession of the land in question by hook or crook

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and therefore it has persuaded the respondent no.3 to

take possession of the land in question and therefore on

15.9.2021, the officers of the respondent no.3 visited the

market and threatened the petitioners to vacate the

premises as the said land is allotted to the Surat

Municipal Corporation (`SMC' for short) under the town

planning scheme; that the petitioners have given reply

through their advocate dated 16.9.2021; that thereafter

the Executive Engineer, South East Zone (Limbayat),

Surat Municipal Corporation has issued notice under

Section 260(1)(a) of the GPMC Act to the petitioners and

32 other persons by notice dated 24.9.2021; that on

issuance of notice dated 24.9.2021, Special Civil

Application No.15322 of 2021 and allied matters came to be filed before this court and on 8.10.2021, this Court

issued notice making it returnable on 21.10.2021 and

protected the petitioners; that on 26.10.2021, the said

group of petitions were disposed off finally relegating the

petitioners to file appropriate reply to the show cause

notice issued by Surat Municipal Corporation and the

same would be decided by the Corporation; that the

court has fixed the time table to file reply and passing

of order and extended the interim protection till the

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passing of the final order by SMC;

3.7 It is further stated that the petitioners have

filed detailed reply along with various documents on

12.11.2021 and 20.11.2021 and mainly contended that the

construction is prior to the area coming in the limits of

SMC and therefore the notice under Section 260(1) of

the GPMC Act cannot be given to the petitioners; that

the petitioners have also appeared before the respondent

no.4 and produced documentary evidence and raised

various contentions, however, respondent no.4 Zonal Chief

and O.S.D. South East Zone (Limbayat), without dealing

with the said contentions passed the order dated

29.11.2021, against which this petition is filed.

4. Heard learned advocate Mr.Rao for the

petitioner, learned AGP Ms.Bhatt for respondent no.1 and

learned advocate Mr.Nanavaty for respondent nos.3 and

5. Learned advocate Mr.Rao for the petitioners

submitted that the proceedings cannot be initiated under

the GPMC Act where the original proceeding is under

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the provisions of the Gujarat Town Planning and Urban

Development Act (`Town Planning Act' for short); that

Section 260 of the GPMC Act provides for pulling down

the construction but not to take possession of the land

and therefore also, the impugned action of the

Corporation is not proper; that the affidavit-in-reply is

not filed by the officer who has passed the impugned

order and that is not permissible under the law; that

the order is not dealing with any contentions raised by

the present petitioners and therefore it is without

application of mind and also without giving any proper

reasons and therefore also bad in law; that Section 260

of the GPMC Act will not come in play when the Town

Planning Scheme is finalized in the year 1999 and the petitioners are existing since 1993; that only private

party can take action against the present petitioners if it

is required to do so but the Corporation, on behalf of

the private party, cannot act in such improper manner.

5.1 Learned advocate Mr.Rao further referred to

Sections 253 and 254 of the GPMC Act and submitted

that action of the petitioners is not in consonance with

the provisions of law; he further referred to Section 67

of the Town Planning Act and submitted that the

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impugned action of the Corporation is not in consonance

with the provisions of law; that the consent letter is

dated 12.4.2010 and notice is dated 11.3.2021 which is

also relevant to be noted; that in view of Section 2(xvi)

of the Town Planning Act which defines `occupiers' of

the land, the present petitioners can certainly be

considered as occupiers and no notice is given to the

present petitioners by the respondent corporation from

1999 till 2021; that the present proceedings pertain to

final plot no.19 survey no.55 and therefore the rights of

the present petitioners are vitally affected by the

impugned action of the respondent-authority. He,

therefore, prayed that this petition be allowed.

5.2 In support of his submissions, learned advocate

Mr.Rao has placed reliance on the following decisions:

1. State Of Gujarat Versus Mohan Hira 1960 GLR 64 and submitted that the authority cannot decide the matter relying on the provisions of the other Act.

2. Evergreen Apartment Cooperative Housing Society Ltd.V/s Special Secretary (Appeals) Revenue Department reported in 1991(1) GLH 155;

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6. Per Contra, learned advocate Mr.Nanavaty

appearing for the Corporation has reiterated some facts

and submitted that the present stalls which are put up

on the land in question is without obtaining any

permission from Gram Panchayat in the year 1992 as it

is mandatory permission under Section 104(1) of the

Gujarat Panchayats Act; that looking to the photographs

which are produced by the petitioners themselves it is

visible that there is some construction by putting up

bricks etc. and thereafter the sheds were erected and

therefore the construction put up by the petitioners are

per se illegal;

6.1 He further submitted that neither the

permission under Section 27 of the Town Planning Act is

obtained from Surat Urban Development Authority

(`SUDA' for short) or from the Corporation by the

present petitioners; that looking to the averments made

in the present petition, nowhere the petitioners have

disclosed about the above mentioned aspect whether there

is any valid and legal permission available with him to

put up such construction; that even there is no pleading

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pleaded in the petition in favour of `any exemption or

immunity' follow in favour of the petitioners from

obtaining such requisite required statutory permission for

putting up such structure and therefore he submits that

the pleadings are silent to this effect; that even the

Parsi Panchayat has never given consent for occupying

103 stalls on the land in question as the land owner of

the land in question; that nothing is flowing from

pleadings so pleaded where Surat Parsi Panchayat has

executed any deed leasing the land area or to permit to

put up the stall in favour of the present petitioners; that

the Regular Civil Suit No.196 of 1994 came to be

instituted by the Surat Parsi Panchayat Funds and

Properties Trust against the lease holders (Meghabhai Sodhabhai and others) for declaration as trespasser; that

nowhere in the pleadings of that civil suit, the status of

the present petitioners is mentioned about the revenue

survey no.55 O.P.No.13 and F.P.No.19 and therefore the

submission which is tried to make out by the present

petitioners relying on the said suit is totally

misconceived.

6.2 Learned advocate Mr.Nanavaty further

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submitted that the Government of Gujarat, by exercising

powers conferred under Section 48(2) of the Town

Planning Act, has sanctioned the draft town planning

scheme no.34 (Magob-Dumbhal) vide notification bearing

no.GH/V/208; that while sanctioning the draft planning

scheme, deduction was proposed in O.P.No.13 and upon

sanction the deducted portion, so deducted from

O.P.No.13 was allotted and was given F.P.No.49 whereas

remaining land area of O.P.No.13 was allotted and given

F.P.no.19 which was allotted to Surat Parsi Panchayat;

that whereas F.P.No.49 vest with the SMC and SMC is

only concerned to get the plot vacated and construction

removed from that very plot F.P.No.49; that said

Meghabhai Sondhabhai, Maniben Narsinh, Mahendra Narsinh, Krishnakumar Agrawal and Kazimbhai Agrawal

who are the leaseholder of the land in question have

never taken any objections neither under Rule 17 of the

Gujarat Town Planning Rules (`Town Planning Rules' for

short) and Section 47 of the Town Planning Act; that

the Parsi Panchayat has also not lodged any objection at

any stage in any form; that admittedly the status of

Meghabhai Sondhabhai, Maniben Narsinh, Mahendra

Narsinh, Krishnakumar Agrawal and Kazimbhai Agrawal

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are all lease holders of the land in question and the

same is the case of the present petitioners as far as the

land in question is concerned and no objections were

filed by the present petitioners at any stage of

finalization of the Town Planning Scheme before any

authority.

6.3 Learned advocate Mr.Nanavaty further

submitted that on 8.6.2009, the government has

sanctioned the draft town planning scheme no.34 ((Magob

- Dumbhal) vide notification bearing no. GH/V/ 50 of

2009/TPS/1409-6226/L. The Final plot No. 49 was curved

out from the total area of the Original Plot No. 13 ,

which is deducted land area deducted from original plot No. 13 and the existing road has nothing to do with the

action initiated in exercise of powers conferred by sub

section (1) of Section 260 of the GPMC Act. Both are

separate things one is vesting the land with the

appropriate authority and other is encroaching the land

appropriately vest with appropriate authority without

authority of law and to remove and vacate the said

portion of the land area. He has further submitted that

Mr. Meghbhai Sondhabhai, Maniben Narsinh, Mahendra

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Narsinh, Krishnakumar Agrawal and Kazimbhai Agrawal

who are the leaseholder of the land in question have

never taken any objections neither under Rule 26 of the

Gujarat Town Planning and Urban Development Rules,

1976 (for short "the Rules") nor under Section 52(1) of

the Act, 1976. It is also pointed out that even Parsi

Panchayat, who have also not lodged any objection sat

any stage in any form.

6.4 Learned advocate Mr.Nanavaty further

submitted that in exercise of powers conferred by

Sections 67,68,69 of the Act, 1976 read with Rule 33 of

the Rules, a notice bearing no. South East Zone /Aa/ No.

5578 came to be issued in favour of (1) Mahendra

Narsingh and Maniben Narsingh for change of possession

on 2.3.2010. He has further submitted that similar notice

is issued to the President of Surat Parsi Panchayat for

change of possession on 2.3.2010. He further submitted

that on 21.1.2011, the Principal Senior Civil Judge, Surat

decided and passed decree in Regular Civil Suit No.196

of 1994; that The Urban Development and Urban

Housing Department, Government of Gujarat in exercise

of powers conferred by Section 65 of the Town Planning

has sanctioned the Draft Town Planning Scheme No. 34

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(Magob - Dumbhal) vide notification bearing no. GH/V/

118 of 2013/TPS/1410-6333/L on 2.7.2013; On 5.9.2019,

the possession warrant in pursuance to the order dated

21.1.2011 passed in Regular Civil Suit No.196 of 1994

came to be issued by the concerned Court which is

ordered to be executed on 7.8.2019; Execution of

possession warrant came to be challenged by the Surat

Wholesale Fruit Sellers Sahakari Mandli Limited before

this Court vide Special Civil Application No. 13664 of

2019 on 6.8.2019 and after considering submissions

canvased by parties to that proceeding, this Court

granted status - quo as on today to be maintained.

However, as per the submission of Mr.Nanavaty, the

present proceedings have no bearing on present proceedings on hand as both were initiated for different

purposes and causes.

6.5 He further submitted that on 24.9.2021,

statutory notice under sub section (1) of Section 260 of

the GPMC Act came to be issued by the Authority for

removing unauthorized construction put up on Final Plot

No. 49 without obtaining development permission under

rule 6 of Chapter 12 of Building Regulations Act, 1949

which are standing with iron angles, guarders and tin

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sheets on the land which was vested with the Authority

and which is against bylaws and rules. He further

submitted that contents of the notice are loud and clear,

which speaks for itself as for what purposes the said

very notice was issued, and the notice indicates that

structure put up with the iron angles, guarders and tin

sheets on Final Plot No. 49, which do not possess or

hold or exists any permission under rules, byelaws under

Rule 6 of Chapter 12 under Building Regulations under

the GPMC Act. and therefore, the clear purpose was

mentioned and stated and said notice was replied firstly

on 03.10.2021; secondly on 11.11.2021 and thirdly on

20.11.2021, the writ petitioners were aware about the

purpose and contents of the notice. He further submitted that on 7.10.2021, statutory notice in exercise of powers

conferred by Section 260(1) of the GPMC Act issued by

the Authority came to be challenged before this Hon'ble

Court in exercise of powers conferred by Article 226 of

the Constitution of India vide Special Civil Application

No. 15322 of 2021 and allied matters. He submitted that

on 26.10.2021, this Court allowed the writ petitioner to

withdraw the said Special Civil Application No. 15322 of

2021 and allied matters unconditionally with a view to

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file a appropriate reply to the show cause notice. That

pursuant to the order dated 26.10.2021 passed in Special

Civil Application No. 15322 of 2021 and allied matters a

detailed written representation came to be filed before

the Authority by the petitioners on 11.11.2021 and

20.11.2021; that pursuant to the order dated 26.10.2021

passed in Special Civil Application No. 15322 of 2021

and allied matters, a public hearing and personal

hearing was given to the writ petitioners and their

learned lawyer by the Zonal Chief and Officer on Special

Duty.

6.6 He further submitted that personal hearing

was attended by learned advocate on behalf of the writ

petitioner and submitted oral and written submissions

and thereafter, on 29.11.2021, a detailed reasoned written

order came to be passed by the Zonal Chief and Officer

on Special Duty considering and dealing all the points

and submissions canvased by the writ petitioners through

their learned advocate, whereby it was held that the

show-cause notice issued by the corporation is just,

proper and within jurisdiction, no legal, constitutional,

fundamental right is in favour of the present petitioners

as the land which is final plot no.49 vests with the

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authority and the deduction given under the statute.

6.7 Learned advocate Mr.Nanavaty submitted that

the respondent authority is the lawful owner of the Final

Plot No. 49 and therefore, unauthorized constructions of

tin sheet sheds with iron angles and guarders are

without any authority of Rules and By laws under Rule

6 of Chapter 12 of the Building Regulations under the

Act, 1949, therefore, required to be removed and has

rightly removed. It is submitted that in private dispute

between the Surat Parsi Panchayat and original Lease

Holders, the competent civil court of Surat passed a

detailed reasoned order dated 29.11.2021 rejecting the

plea and submissions of the writ petitioners and the

authority was very much conscious about the process and proceedings being initiated by the authority. It is further

submitted that it is not in dispute It is not in dispute

that possession of the Final plot No. 49 was already

taken over by the Authority and handed over to the

Authority by Mahendra Narsinghi and others in the year

2010 itself, for which neither Mahendra Narsinghi and

others have raised any objections or dispute with

authority. The only thing which was left out to be

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removed and clear possession of land area by removing

the unauthorized construction.

6.8 He has further submitted that thereafter this

petition is filed on 6.12.2021 by challenging the

impugned order of authority dated 29.11.2021. He has

also pointed out that though this Court has issued notice

but has not granted any interim relief in favour of the

present petitioners.

6.9 In view of the above background, learned

advocate Mr.Nanavaty submitted that the petitioners do

not have locus to stay on the final plot no. 49 and in as

much as the present writ petitioners failed to prove their

case beyond doubt that the action was initiated at final

plot no. 49, nothing on record to establish or prove the

case canvased by the writ petitioner much less nothing

is on record to exhibit as to how the detailed reasoned

order is bad in eye of law. Therefore, he submitted that

the conduct of the present petitioners is also required to

be considered by this Court; that the petitioners, while

withdrawing the earlier petition being SCA No.15322 of

2021 agreed to cooperate with the authority in response

to the statutory notice issued under section 260(1) of the

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Act. While withdrawing the writ petition, none of the

writ petitioners has resisted the order passed on

26.10.2021 on the ground that the authority has no

competence to issue such notices to the petitioner much

less not contested the notice on the various grounds of

challenged though very much available to them at that

point of time. As such the writ petitioners herein do not

hold any title i.e., leaseholders, or sub leaseholders or

tenants on the land of Final Plot No. 49, and more

particularly when Final Plot No. 49 vest with Authority.

No locus to maintain the writ petition.

6.10 He further submitted that once agreed to the

consensus order and now in the present proceeding, the

writ petitioners are questioning the authority and power

of the authority in issuance of notice on the ground that

under the guise of GPMC Act proceedings the Authority

wants to implement the Town Planning Scheme and for

which the Authority have to resorted to the provisions of

Section 68 of the Act is not required to be considered.

6.11 He has further submitted that it is required to

be placed on record that the original land owners have

surrendered the possession of the Final Plot with their

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consent and when principal has agreed to relinquish

their right then lease holder independently do not hold

any right under the law. He has further submitted that

only with a view to remove unauthorized structures the

notice under 260(1) of the Act was issued and after

hearing the advocate and writ petitioners on 20.11.2021

the Authority has passed detailed reasoned order dated

29.11.2021 under section 260(2) of the Act, therefore, the

Authority was conscious about the powers exercised. He

has submitted that no legal, fundamental or

constitutional right of the petitioners were infringed.

6.12 He further submitted that the existing Road

near by Khadi and Final Plot No. 49 are two different

things and there is foot path also adjourning to road

and therefore, the structures are not required to be

disturbed or removed. The contention and argument to

the effect that since the road is already laid down and

there is foot path also adjourning to road and therefore,

the structures are not required to be disturbed or

removed. However, the structure standing on Final Plot

49 do not hold or possess any legal permission under its

belt and therefore, the authority has initiated proceeding

to vacate and removed unauthorized illegal structure.

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6.13 It is further submitted that it is needless to

say that the present petition with the reliefs/ clauses

have become infructuous as order dated 29.11.2021 was

complied, executed and implemented on December 10,

2021 upon refusal of the interim relief on December 06,

2021 and physical possession was also already taken by

the Authority and therefore, the present prayers prayed

in clause "B" and clause "C" stated in memorandum of

writ petition is become ineffective as order dated

29.11.2021 was implemented and executed in its true

spirit.

6.14 He finally submitted that in view of the

judgment dated 1.8.2019 passed in Special Civil

Application No.9318 of 2017 and the order dated 6.9.2018

passed in Letters Patent Appeal No.986 of 2018, the

present petition is devoid of any merits and the same is

required to be dismissed.

6.15 In support of his submissions, learned advocate

Mr.Nanavaty relied on the judgments in the cases of :

"(1) Babubhai And Company Versus State Of Gujarat AIR

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1985 SC 613,

(2) Municipal Corporation Versus Chelaram And Sons reported in AIR 1997 SC 31,

(3) Keshavji Devji Patel Through P.O.A. Mohanlal Keshavji & Ors., reported in 2007(1) GLR 297;

(4) Commissioner Of Central Excise, Haldia Versus Krishna Wax P.Ltd., reported in 2020(12) SCC 572 and

(5) Malladi Drugs And Pharma.Ltd. Versus Union Of India reported in 2020(12) SCC 808"

7. Learned AGP Ms.Bhatt appearing for

respondent no.1 has submitted that there is no perversity

or illegality of the action committed by the Corporation

and has adopted the arguments canvassed by learned

advocate Mr.Nanavaty as the main contesting party is

SMC.

8. I have considered the averments made in the

petition, the affidavit-in-reply, submissions canvassed by

learned advocates appearing for the parties and also

perused the various documents produced on record.

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9. At the outset, the provisions of Section 260 of

the GPMC Act and Section 104 of the Gujarat Panchayat

Act and Sections 27 to 29 of the Town Planning Act are

required to be perused and therefore, they are produced

hereunder for ready reference:

"Section 260 of the GPMC Act :

260. (1) If the erection of any building or the execution of any such work as is described in section 254 is commenced or carried out contrary to the provisions of the rules or by-laws, the Commissioner, unless he deems it necessary to take proceedings in respect of such building or work under section 264, shall -

(a) by written notice, require the person who is erecting such building or executing such work or has erected such building or executed such work on or before such day as shall be specified in such notice, by a statement in writing subscribed by him or by an agent duly authorised by him in that

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behalf and addressed to the Commissioner, to show sufficient cause why such building or work shall not be removed, altered or pulled down, or

(b) shall require the said person on such day and at such time and place as such be specified in such notice to attend personally or by an agent duly authorised by him in that behalf, and show sufficient cause why such building or work shall not be removed, altered or pulled down.

(2) If such person shall fail to show sufficient cause, to the satisfaction of the Commissioner, why such building or work shall not be removed, altered or pulled down, the Commissioner may remove, alter or pull down the building or work and the expenses thereof shall be paid by the said person."

Section 104 of the Panchayats Act :

104. (1) No person shall erect or re-erect or commence to erect or re-erect within the limits of the village, any building without the previous permission of the panchayat.

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(2) Permission shall be presumed to have been granted if the panchayat fails to communicate its sanction or refusal in respect thereof within one month from the date of receipt of the application for the permission. In case of refusal, the panchayat shall communicate to the applicant the reasons thereof, and an appeal shall lie against any such order of refusal to the taluka panchayat: Provided that no such appeal shall be entertained if it is made after the expiry of thirty days from the date on which the refusal is communicated to the applicant.

(3) No person, who becomes entitled under sub- section (1) or (2) to proceed with any intended work of erection or re-erection shall commence such work after the expiry of one year from the date on which he became entitled to proceed therewith unless he shall have again become so entitled by a fresh compliance with the provisions of sub-section (1) or (2) as the case may be.

(4) Whoever erects or re-erects or commences to erect or re-erect any building without such permission or in any manner contrary to the

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provisions of subsection (1) or any bye-law in force, or any conditions imposed by the panchayat shall, on conviction be punished with fine, which may extend to two hundred rupees and in the case of a continuing contravention, he shall be liable to an additional fine which may extend to twenty rupees for each day during which such contravention continues after conviction for the first such contravention.

(5) Without prejudice to the penalty prescribed in sub-section (4) the panchayat may--

(a) direct that the erection or re-erection be stopped,

(b) by written notice require such erection or re- erection to be altered or demolished, as it may deem necessary, and, if the requirement under clause (b) is not complied with within the time fixed in the notice, the panchayat may cause the alteration or demolition to be carried out by its officers and all the expenses incurred by the panchayat therefor, shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter X:

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Provided that when a notice for bringing any action against any direction for the alternation or demolition of any erection or re-erection issued under this sub-section has been given under sub- section (2) of section 270, alteration or demolition shall not be caused to be carried out until the expiry of the period of such notice and a further period of seven days.

(6) Nothing contained in this section shall apply to any building which is used or required for public service or for any public purpose, and if the property of the State or Central Government or any local authority, or is to be erected or re-erected by the State Powers of panchayat to manage institutions or execute work transferred to it by taluka or district panchayat. Control on erection of buildings. 1993 : Guj. 18] Gujarat Panchayats Act, 1993. 41 or Central Government or the local authority but reasonable notice of the proposed construction shall be caused to be given to the panchayat, and the objections or suggestions of the panchayat, if any, shall be considered. Explanation.-- The expression "erect" or "re-erect"

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with reference to a building in this section includes-

(a) any material alteration, or enlargement of or in any building;

(b) the conversion by structural alteration into a place for human habitation of any building not originally constructed for human habitation;

(c) such alteration of a building as would effect a change in the drainage or sanitary arrangement or materially affect its security;

(d) the addition of any rooms, buildings, outhouses, or other structures to any building;

(e) the conversion by any structural alteration into a place of religious worship or into a sacred building of any place or building, not originally meant or constructed for such purpose;

(f) roofing or covering an open space between walls and building's as regards the structure which is formed by roofing or covering such space ;

(g) conversion into a stall, shop, warehouse, or godown of any building not originally constructed for use as such or vice versa;

(h) construction in a wall adjoining any street or land not vested in the owner of the wall, of a door

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opening on such street or land."

Section 27 to 29 of the Town Planning Act reads as under:

27. Application of permission for development.- Any person, not being the Central Government or a State Government, intending to carry out any development in any building or in or over any land within the limits of a development area on or after the date referred to in Section 26, shall, except where such development is for any of the purposes specified in the proviso to that section, make an application in writing to the appropriate authority for permission for such development in such form and containing such particulars and accompanied by such documents as may be prescribed,[and by such scrutiny fees as may be prescribed by regulations].

28. Permission for retention or continuance or use of any building or work or any use of land.- (1) Any person not being the Central Government or a State Government intending to retain any use of building or work constructed or carried out on any

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land, or to continue any use of land made, before the date on which a final development plan in respect of any development area in which such building or land is situated comes into force, which use is not in conformity with the provisions of the regulations or the final development plan shall make an application in writing to the appropriate authority for permission to retain or continue such use, containing such particulars and accompanied by such document, as may be prescribed[and by such scrutiny fees as may be prescribed by regulations]within six months from the date on which the final development plan in respect of such development area comes into force.

(2) On and after the date on which the said period of six months expires, no person shall retain or continue any such use of building or work or land, without such permission having been obtained or contrary to the terms thereof:

Provided that where such person has applied under sub-section (1) within the period of six months and no order under Section 29 has been made within

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that period, he shall retain or continue such use until the date of such order.

29. Grant or refusal of permission.- (1) On receipt of an application under Section 27 or Section 28, the appropriate authority shall furnish the applicant with a written acknowledgment of its receipt and after satisfying itself that the development charge[and scrutiny fees,]if any, payable by the applicant has been paid and after making such inquiry as it thinks fit may, subject to the provisions of this Act, by order in writing.-

(i) grant the permission with or without any condition; or

(ii) grant the permission, subject to any general or special orders made by the State Government in this behalf; or

(iii) refuse to grant the permission.

(2) Any permission under sub-section (1) shall be granted in the prescribed form and every order granting permission subject to conditions or refusing permission shall state the grounds for imposing such conditions or for such refusal.

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(3) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.

(4) If the appropriate authority fails to communicate its order to the applicant within three months from the date of receipt of the application, such permission shall be deemed to have been granted to the applicant on the expiry of the said period of three months.

(5) If any person carries on any development work or retains the use of any building or work or continues the use of land in contravention of the provisions of Section 27 or Section 28 or of any permission granted under sub-section (1) of this section, the appropriate authority may direct such person, by notice in writing, to stop further progress of such work or to discontinue any use and may, after making an inquiry in the prescribed manner, remove or pull down any building or work carried out and restore the land to its original condition or, as the case may be, take any measures to stop such use.

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(6) Any expenses incurred by the appropriate authority under sub-section (5) shall be a sum due to the appropriate authority under this Act from the person in default."

10. Learned advocate for the petitioners is mainly

harping on the fact that the notice is issued by

exercising powers under Section 260 of the GPMC Act

which cannot be issued as they are trying to implement

the town planning scheme and therefore the notice is

required to be issued under the provisions of the Town

Planning Act and the notice issued under the provisions

of the GPMC Act is not in accordance with law and by

resorting to proper procedure under the law; that even Section 260 notice cannot be issued to the present

petitioners in view of the judgment of the in 1960 GLR

64 and the provisions of the GPMC Act cannot be

applicable. The construction of the petitioners is existing

since the year 1992 which is borne out from the record

and thereafter since the area of the land in question is

included in the limits of SUDA much later in the year

1999 and the provisions of the Act cannot be held

applicable. Considering this submission, if we look into

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the proceedings initiated by various authorities under the

Town Planning Act, the scheme is submitted in the year

1999 and the scheme is approved by government on

3.7.2012. It is also relevant to note that the petitioner

has not produced any permission from the panchayat or

SUDA or the municipal corporation for erecting the

construction over the land. It is also pertinent to note

that now the property in question is included in the

local limits of the corporation and when the said land of

plot no.49 vest with the authority, the authority is

having all rights and powers under Section 260 of the

GPMC Act to take necessary action against such

unauthorized construction and therefore that contention

raised by Mr.Rao fails in light of the above mentioned facts.

11. It is also relevant to note that time and again

the opportunity was given to the original lease holder as

well as the owner of the land in question to raise

objection against the town planning scheme but nobody

has raised any objection at the relevant point of time of

town planning scheme and therefore the town planning

scheme which is now become final and in view of

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Section 65(3), it has become part of the legislation and

therefore for the property which is vest by virtue of that

scheme with the authority, the authority is entitled to

evict such property by removing the unauthorized

construction.

12. At this stage, paragraphs no. 1 and 2 of the

order dated 26.10.2021 passed in Special Civil Application

No.15322 of 2021 and allied matters is required to be

considered, which read as under:

"1. By way of these petitions under Article 226 of the Constitution of India, the petitioners have asked for the following reliefs :-

(A) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction thereby quashing and setting aside the impugned notice dated 24.09.2021 being No. Sa. E. Zone/803/19 issued by respondent no. I under the provisions of section 260(1)(a) of Bombay Provincial Municipal Corporation Act, 1949 served upon the petitioner on 01.10.2021 directing him to show cause as to why not to remove the unauthorised kaccha construction put up by constructing iron angles and sheds

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upto the plinth level falling in Final Plot No. 49 of T.P. Scheme No. 34 situated at Village Limbayat in the interest of justice:

(C) Pending admission, hearing and final disposal of the present petition, this Hon'ble Court may kindly be pleased to stay the implementation, execution and operation of the impugned 19 notice dated 24.09.2021 being No. Sa. E. Zone/ 803/19 issued by respondent no.1 under the provisions of section 260(1)(a) of Bombay Provincial Municipal Corporation Act, 1949 served upon the petitioner on 01.10.2021 in the interest of justice;

(D) Ad-interim relief in terms of para 9(C) may kindly be granted;

(E) Any other order/s that may be deemed fit and expedient may kindly be passed in the interest of justice by this Hn'ble Court.

2. At the outset, when the matters are taken up for hearing, learned arguing counsel Shri Y.N. Oza appearing with learned advocate Mr. Vaibhav Sheth for the petitioners seeks permission to withdraw the petitions with a view to file appropriate reply to the impugned show cause notice issued by the respondent No.1 authority and has submitted that the Court may not express any opinion on merit with

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regard to any of the contentions reflecting in the petitions. It has been submitted that such reply will be filed on or before 15.11.2021 and upon such filing of the reply, the respondent authority shall grant an opportunity of hearing within a reasonable period of time and appropriate decision will be taken upon such reply being filed. To this submission, learned advocate Mr. Dhaval Nanavati appearing on behalf of the respondent authority has no objection and has shown an inclination that if the petitioners will file reply to the show cause notice on or before 15.11.2021 without fail, the Corporation will extend an opportunity of hearing and appropriate decision will be taken and till such decision making process is completed by passing appropriate order, the petitioners will not be disturbed and interim protection which has been granted earlier may be continued till passing of the order, to which there is no objection."

13. Considering the fact that the said matter was

prayed to be withdrawn with a view to file appropriate

reply to the impugned show cause notice issued by

respondent no.1 authority and therefore it is now not

proper for the petitioners to contend that the

respondent has no authority to initiate the proceedings

under Section 260 of the GPMC Act as the petitioners

could have contended the same in that petition and

could not have requested for withdrawal of that petition.

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Even looking to the prayer in that petition also, the

petitioners have accepted the fact that the respondent

has power to exercise powers under Section 260 of the

GPMC Act.

14. It is also relevant to note that this Court has

taken the view in many matters that if the construction

is not put up by obtaining any permission from any

competent authority, then it can be said as illegal

construction and if we look into the provisions of Section

260 of the GPMC Act and also Section 104 of the

Panchayats Act as well as Section 27 of the Town

Planning Act which pertain to the construction

permission as well as the action pursuant to the unauthorized construction.

15. Now looking to the order passed by the

authority which is challenged in the present petition, it

is clear that the authority has considered all the

submissions by giving findings in detail and has come to

the conclusion that the objection raised by the present

petitioners is required to be dismissed.

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16. At this stage, it will be fruitful to refer to the

judgment passed by Division Bench of this Court in the

case of Bharatkumar Kantilal Kapadiya and others v/s

State of Gujarat being SCA No.9318 of 2017, in which, it is observed in paragraphs 7 and 7.1 which are

reproduced as under :

"7 Having regard to the facts and circumstances of the case, submissions made by learned counsels for the parties vis-a-vis record of the writ petition, and various orders passed in this writ petition by this Court from time to time, including allowing draft amendment by challenging vires of provisions of Gujarat Town Planning and Urban Development Act by specific prayer that the above Act, 1976 is ceased to be in operation from 01.06.1994, and therefore, to declare the above Act as ultra vires, we have not been persuaded by any of the submissions made by learned counsel for the petitioners and the present writ petition is grossest abuse of process of law and as rightly submitted by learned senior counsel for the respondent - Ahmedabad Municipal Corporation that it is a brazen attempt by rank outsiders and encroachers who want to grab the land by adopting dubious means. It further revealed that the petitioners by one or the other

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pretext claiming right, title, ownership and even compensatory rights filed civil suits, writ petitions and other such proceedings claiming entitlement of the fundamental rights and other civil rights and having lost before all the forums including the Apex court, now filed the present petition invoking extraordinary writ jurisdiction under Article 226 of the Constitution of India by challenging the vires and we are not inclined to entertain this petition filed at the behest of persons, who have no right and title over the land. Not only that, but after grant of initial order of stay, about 16 illegal structures have been come up on the subject plots.

7.1 In the case of Dalip Singh vs. State of Uttar Pradesh & Ors. [(2010)2 SCC 114], the Apex Court, in paras 1 and 2 held as under:

"1 For many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and `Ahimsa' (nonviolence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the

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consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."

In the present case, from the record, it clearly appears that the petitioners have made all attempts to see that land belonging to Government or local authorities is grabbed. It also reveals that nowhere the petitioners could establish their right by pointing out any document viz. revenue entry, property card, etc. and by producing few electricity bills trying to show that

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they have right on the land. The record produced in the writ petition reveals that draft Town Planning Scheme was sanctioned on 06.02.2003, preliminary town planning scheme was sanction on 11.06.2009 and the above preliminary town planning scheme was finalized on 31.07.2015 and all those survey numbers viz.

       101/1,       102/2 and survey Nos.102/1/A, B, C and 102/2 over
       which petitioners               claim,          ultimately           merged           into
       final Plot      Nos.       288           and      263.          At       no        stage,
       the petitioners            have             raised           their           objections
       though public notices were given.                        In spite of the above

fact, earlier a writ petition was filed and the petitioners were relegated to raise their objections upon receiving notice under Section 67 of the Gujarat Town Planning and Urban Development Act read with Rule 33, which was also rejecting by the authorities, wherein also the petitioners claimed their legitimate claim by producing documents."

17. In the case of Vakatar Samatbhai Ghusabhai

V/s State of Gujarat being LPA No.986 of 2018, the

Division Bench of this Court has observed in paragraphs

13, 14 and 15 as under:

"13. Learned counsel for the appellants mainly claims protection under the definition of "street vendor", as provided

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under Section 2(l) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, which reads as under:

"2. Definitions.--(1) In this Act, unless the context otherwise requires,--

(l) "street vendor" means a person engaged in vending of articles, goods, wares, food items or merchandise of everyday use or offering services to the general public, in a street, lane, sidewalk, footpath, pavement, public park or any other public place or private area, from a temporary built up structure or by moving from place to place and includes hawker, peddler, squatter and all other synonymous terms which may be local or region specific; and the words "street vending" with their grammatical variations and cognate expressions, shall be construed accordingly;"

Chapter-II of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014, deals with regulation of street vending and under Section 3 of the Act, Town Vending Committees are to be constituted to conduct survey of existing street vendors to ensure that existing street vendors are identified and as per Section 3(3) of the Act, no street vendor shall be evicted till he is relocated as per the survey under Section 3(1) of the Act is done and Certificate of Vending is issued. Under Section 4 of the Act,

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every street vendor, identified as such under Section 3(1) of the Act, is entitled for Street Vending Certificate.

14. Learned counsels for the respective parties also placed on record, photographs in support of their case. It is also not in dispute, such constructions are raised in Final Plot No.121/1, Survey No.755/5/6, covered by T.P.Scheme No.5 in the Sim of Village Makarba, Ahmedabad. A perusal of the photographs clearly reveal that the structures are in the nature of permanent but cannot be termed as temporary, as claimed by the appellants. In the earlier petition, 1st appellant himself has clearly stated that the constructions are covered by walls, roofs, etc. and same was withdrawn, subsequently Special Civil Application No.10854 of 2018 is filed, along with other petitioners. In earlier petition, there was no claim of "street vendor" within the meaning of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. Such plea is raised in the subsequent petition filed in Special Civil Application No.10854 of 2018. The appellants have claimed the benefit of Section 2(l) of the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. As averred in the earlier petition, the 1st appellant himself has claimed that he is proprietor of Khetlapa Tea Stall, which is a Company registered under the Companies Act having its trademark. Even appellants No.2 to 7 were doing businesses in similar identical structures which are constructed illegally

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and unauthorisedly. As contended by the learned Senior Counsel Shri Prashant Desai, it is to be noticed that the definition of `building' as defined under clause-5 of Section 2 of the Gujarat Provincial Municipal Corporations Act, 1949, reads as under: "`building' includes a house, out-house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever whether used as a human dwelling or otherwise, and also includes Verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing and the like".

From the aforesaid definition, it is clear that not only permanent structures but temporary constructions of shed, hut, etc. are also covered in the definition of `building'. In view of such broad based definition of `building', as defined under the Gujarat Provincial Municipal Corporations Act, 1949, even for constructing a temporary structure, permission is required to be obtained. Even to raise constructions temporarily, such promoter of construction shall make an application to the Ahmedabad Municipal Corporation as required under Sections 253 and 254 of the Gujarat Provincial Municipal Corporations Act, 1949, read with Sections 26 and 29 of the Gujarat Town Planning and Urban Development Act, 1976.

15. Apart from the definition of `building' under the

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provisions of the Gujarat Provincial Municipal Corporations Act, 1949, which covers temporary structure, it is also covered in the definition of "development" as defined under clause 8 of Section 8 of the Gujarat Town Planning and Urban Development Act, 1976. "Development" as defined under the aforesaid Act reads as under:

"`development' with all its grammatical variations and cognate expressions, means the carrying out of any building, engineering, mining or other operations in, or over, or under land or the making of any material change in any building or land or in the use of any building or land, and includes layout and sub-division of any land" It is clear from the provision of the aforesaid Act, `development' includes construction and once Scheme is approved, no one can raise construction in any Final Plot without obtaining permission as required under the law. As referred above, the constructions made by the appellants amount to constructing `building' as defined under the Gujarat Provincial Municipal Corporations Act, 1949, and also `development' as defined under the Gujarat Town Planning and Urban Development Act, 1976. Admittedly, as such constructions are not preceded by any permission, they are unauthorised and illegal."

18. The petitioners have also contended that

occupier is defined under Section 2 of the Town Planning

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Act and no prior notice is received by the petitioners

under the provisions of the Town Planning Act. This

submission is not helpful to the present petitioner, in

view of the judgment passed in the case of Cosmos

Development Corporation Versus State of Gujarat Through Secretary being Letters Patent Appeal No.87 of 2011, of which the paragraphs nos.20 and 21 read as

under :

"20. We have heard learned senior counsel for the respective parties and taken into consideration the submissions made by learned senior counsel for the petitioner about not affording any opportunity of hearing to the petitioner, we find that as per available official record, at every stage, the competent authority under the Act, 1976 has issued notices to those whose names were found in revenue or official record and such notices dated 26.2.1992, 10.5.1994, 12.9.1995, 7.1.1999 and later on notices dated 7.9.2007 and 10.9.2007, were issued to legal heirs of the original owners, societies, vendors, even Court receiver and the concerned District Collector, but as nowhere name of holder of agreement to sale was reflected in any official record and no notice was issued, thus, it cannot be said that the petitioner was either eligible or entitled to receive such notices. Even if definition of Section 2 (xvi) (xviii) with regard to 'occupier'

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and 'owner' are broadly considered and interpreted, no right accrues to holder of agreement to sale the subject land, to complain about irregularity or any error or informality in the Town Planning Scheme and particularly in the facts of this case the very fact about title 'ownership' 'Possession', etc. was in dispute in a pending civil litigation. We find neither on the ground of merit namely, any error irregularity or informality nor on the aspect of pending civil disputes between the parties, the authority has erred in rejecting the representation.

      21. There              is       a         force          in       the          arguments
      canvassed              by Mr.Prashant Desai, learned senior counsel

appearing for the competent authority of the Act, 1976 that not only individual notices were issued to affected persons, but public notices in vernacular daily newspaper were published and at no point of time any objection was lodged, though the span of taking decision by Town Planning Authority under Section 50 of the Act, 1976 relate to 1992 to 2007. So far as dispute to be decided by the authority under Section 46 is concerned, it would not detain us any longer since simple language of the provision referred to a disputed claim to the ownership in the place of land included an area for which a Town Planning Scheme is to be made is only with regard to entry of right or mutation relevant to such disputed claim is either inaccurate or in conclusive and upon application being made by the

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party. The enquiry may be held on an application made by the appropriate authority. The State of Gujarat appointed the officer for the purpose of deciding such dispute, etc. and so is not the case as revenue records clearly revealed the name of original landlords and legal heirs and other occupiers. It may not be out of place to mention that by virtue of Section 48(A) about vesting of land in appropriate authority, it is clear that when a draft scheme has been sanctioned by the State Government under sub Section (2) of Section 48, all lands required by the appropriate authority for the purpose specified in clause (c), (f), (g) and (h) of sub Section (3) of Section 40 shall vest absolutely in the appropriate authority free from all encumbrances and sub Section (3) of Section 48(A) further makes it clear that the provisions of Sections 68 and 69 shall mutatis mutandis apply to the sanctioned draft scheme, as if sanctioned draft scheme were a preliminary scheme."

19. In view of the above discussion, I am of the

opinion that the respondent authority has followed the

necessary procedure prescribed under the law and the

impugned order passed by the respondent authority is

dated 29.11.2021 is just, proper and well reasoned order

and there is no illegality, perversity or arbitrariness

committed by respondent authority which calls for

C/SCA/18401/2021 CAV JUDGMENT DATED: 07/10/2022

interference of this Court under Article 226 of the

Constitution of India nor any breach of fundamental

right or legal right by respondent-authority is established

by the present petitioners. Even otherwise, in view of