[Cites 9, Cited by 0]
Gujarat High Court
Saiyed Arefabanu Ibrahimbhai Miya vs State Of Gujarat on 20 February, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
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C/CA/893/2026 JUDGMENT DATED: 20/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 893 of
2026
In R/LETTERS PATENT APPEAL/191/2026
In R/SPECIAL CIVIL APPLICATION/7378/2025
With
R/LETTERS PATENT APPEAL NO. 191 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 7378 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026 In R/LETTERS PATENT
APPEAL NO. 191 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 7378 of 2025
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SAIYED AREFABANU IBRAHIMBHAI MIYA & ORS.
Versus
STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR HASHIM QURESHI(1097) for the Applicant(s) No. 1,2,3
MR. EKRAMA H QURESHI(7000) for the Applicant(s) No. 1,2,3
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 20/02/2026
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
ORDER IN CIVIL APPLICATION (FOR
CONDONATION OF DELAY) NO. 893 of 2026:-
Mr. Anuj K Trivedi, learned advocate appearing on
behalf of the the respondent - Corporation has no objection to
the delay of 21 days in filing the present appeal. The delay has
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been explained to the satisfaction of the Court. The delay
condonation application is hereby allowed. The delay in filing
the appeal is condoned. The office shall allot the regular
number to the appeal.
ORDER IN APPEAL:-
1. Heard learned counsel for the appellants and perused
the record. This intra-court appeal is directed against the
judgment and order dated 23.12.2025 passed by the learned
Single Judge whereby the challenge to the order dated
13.05.2025 passed under Section 68 of the Gujarat Town
Planning and Urban Development Act, 1976 ("the Act, 1976")
r/w Rule 33 of the Gujarat Town Planning and Urban
Development Rules, made thereunder, has been turned
down. While dismissing the writ petition, the writ Court has
issued directions that two months' time may be provided to
the petitioners to vacate their respective premises and the
petitioners would be liable to give peaceful and vacant
possession of their respective premises to the respondent -
Corporation.
2. Challenging this order, it was sought to be submitted by
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Mr. Ekrama H. Qureshi, learned advocate appearing for the
appellants - original petitioners that the original petitioners
are seeking to assert their right, title and interest in the land
in question which was in their ownership. The documents
such as tax-bill, electricity bills and agreement to sell
including others demonstrating the ownership and
occupation of the petitioners were filed before the officer of
the Corporation, under the directions issued by this Court in
the previous petition namely Special Civil Application No.
1178 of 2025. However, all the relevant documents have
been conveniently ignored by the officer concerned while
passing the order dated 13.05.2025.
3. The contention is that, even otherwise, the officer
concerned has left it open for the petitioners to agitate their
grievances before the Town Planning Officer, inasmuch as,
the Town Planning Scheme as on date is at the stage of the
sanction of the Draft Town Planning Scheme. The contention,
thus, is that the learned Single Judge has erred in closing the
doors for the petitioners by observing in the order impugned
that the petitioners being occupiers of the subject land do not
have any ownership rights and they cannot be considered for
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allotment of final plots against the original plots.
4. The submission is that the directions issued in the
judgment impugned, asking the petitioners to vacate the
plots in question within a period of two months from the
order, is causing serious prejudice to the petitioners as they
have been deprived of agitating their right, title and interest
in the lands in question before the Town Planning Officer in
accordance with the provisions of the Act, 1976.
5. The contention is that the Draft Town Planning Scheme
is not a final declaration of the scheme under the Town
Planning Act, rather after sanction of the Draft Town
Planning Scheme by the State Government, the Town
Planning Officer is appointed who is required to look into all
objections by any person claiming right, title and interest in
the property/land subject matter of scheme. The contention,
thus, is that liberty be given to the petitioners to agitate their
grievances before the Town Planning Officer and the
directions issued by the learned Single Judge in the judgment
impugned be modified, accordingly.
6. Having considered all the submissions made by the
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learned counsel for the appellants, pertinent is to record that
the writ petition, out of which this appeal has arisen, has
been filed jointly by 17 persons claiming right, title and
interest in the lands in question namely Revenue Survey No.
3, 3/1+2 paiki 1, 3/1 +2 paiki 2, original plot no. 136, Final
Plot No. 136 and Revenue Survey No. 4/1, 4/2, 4/3, 4/4,
original plot no. 137, final plot no. 137 admeasuring total
about 10,849 sq. mtrs. (after allocation of the final plot) is
situated at Moje Maktampura. The petitioners have made
vague averments in paragraph no. '6.1' of the writ petition
that they are the owners and occupiers of the lands in
question. Apart from the tax bills, electricity bills and
agreement to sell, no other documents could be filed to
substantiate their ownership or any legal right or interest
over the land in question.
7. The order impugned dated 13.05.2025 passed by the
officer of the Corporation categorically records that the
petitioners have failed to produce any document of valid
transfer of right, title and interest in their favour by the
original owners. The learned Single Judge also records that
the final plots in lieu of the original plots have already been
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allotted to the original owners.
8. We may also note that the original owners of the lands in
question, in whose favour the final plot nos. 136 and 137
have been allotted under the Draft Town Planning Scheme,
have not been impleaded in the writ petition. The claim
made by the petitioners for allotment of the final plots or
relocation or giving them an alternative lands/plots, cannot
be considered in absence of the original owners in the
present set of proceedings. There is no denial in the writ
petition about the observation made in the order impugned
with regard to allotment of the final plots in favour of the
original owners.
9. The grounds taken to challenge the order impugned
dated 13.05.2025 passed by the officer of the Corporation,
agitated in the writ petition, are that the existing use or
occupation rights of the property owner are rooted in the
principles of fairness and natural justice, which safeguards
long-standing and lawful property use from arbitrary
interference. The property has been in continuous and
authorized use, establishing vested rights that cannot be
disregarded without compelling public interest. Several
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petitioners are long-term residents, having occupied their
respective residential dwelling units at the site prior to
01.04.2010 and, as such, they fall squarely within the
eligibility criteria prescribed under the Regulations for
Rehabilitation and Redevelopment of Slums, 2010, which
constitute the prevailing policy framework of the State
Government and the Ahmedabad Municipal Corporation for
the rehabilitation of Project Affected Persons.
10. It is contended by the petitioners in the writ petition as a
ground to challenge the order impugned dated 13.05.2025,
that the petitioners are eligible for the benefits of
rehabilitation. The respondent authorities, however, have
failed to consider their entitlement to alternative
accommodations.
11. The further contentions therein are about violation of
principles of natural justice and the denial of equity; the right
to property protected under Article 300A of the Constitution
of India.
12. From the above reading of the writ petition, it is, evident
that the petitioners have made contradictory statements
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before the writ Court about their rights, title or interest in
the lands in question. On one hand, they claim ownership
over the lands in question and on the contrary, the assertions
are that the petitioners are entitled for rehabilitation under
the Regulations for Rehabilitation and Redevelopment of
Slums, 2010.
13. The contentions made by the learned counsel for the
petitioners that the learned Single Judge has erred in
observing in paragraph no. '8' that the petitioners though
claimed to be occupier of the subject land but they do not
have any ownership rights, are not worthy of acceptance.
14. No error can be attached to the judgment impugned,
which is based on an exhaustive consideration of claims of
the petitioners as also the findings returned in the order
passed by the competent officer of the Municipal
Corporation, subject matter of challenge before the writ
Court.
15. The present is a case of preparation of the Town
Planning Scheme under the Act, 1976. The Draft Town
Planning Scheme prepared by the Municipal Corporation was
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notified under Section 41 of the Act, 1976 and has been
sanctioned by the State Government under Section 48 (2) of
the Act, 1976 vide notification dated 09.06.2015. As a result
of the sanction of the Draft Town Planning Scheme, the same
became part of the Act by virtue of Section 48A of the Act,
1976, which provides that with the sanction by the State
Government under Section 48 (2) of the Act, 1976, all lands
required by the appropriate authority (the Corporation
herein) for the purposes specified in the clauses (c), (f), (g)
and (h) of Section 40 (3), shall vest absolutely in the
appropriate authority free from all encumbrances. However,
the effect of Sections 48 (2) and 48A is that vesting under
Section 48A (1) shall not affect any right of the owner of the
land. The eviction proceedings from a piece of land or plot
vested with the Corporation, reserved for public purpose
under the Draft Scheme sanctioned by the State Government,
is guided by Section 68 of the Act, 1976.
16. In the first round of litigation, the petitioners challenged
the orders dated 22.01.2025 and 07.02.2025 passed under
Section 68 read with Rule 33 of the Act, 1976 by the officer
of the Corporation, for eviction of the petitioners. The sole
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ground of the challenge before the writ Court therein was
that the orders impugned were passed in violation of
principles of natural justice. On the consensus of the learned
advocate appearing for the Corporation, recorded therein
while quashing the aforesaid orders, the matter was
relegated for providing the fresh opportunity of personal
hearing to the petitioners.
17. There is no dispute about the fact that the petitioners
have been afforded an opportunity of hearing before passing
of the order dated 13.05.2025 wherein it is recorded that
they have failed to establish their claims on merits. We may
also note that out of seventeen (17) petitioners before the
writ Court, only three (3) are in appeal before us.
18. Having noted the above facts, it is evident that the
appellants have no claim to continue to occupy the piece of
land for which they have failed to establish their rights, title
or interest, so to seek accommodation under the Town
Planning Scheme framed under the Act, 1976. The lands in
question having been vested with the Corporation by virtue
of Section 48A of the Act, 1976 and the final plot nos. 136
and 137 having been allotted to the original owners of the
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lands, who are not before us, it is evident that the appellants
have left with no right to raise any challenge to the Draft
Town Planning Scheme or any determination made under the
Town Planning Scheme, with regard to any alternate plot in
lieu of the lands in question which are subject matter of
reconstitution under the Town Planning Scheme.
19. The challenge to the eviction order dated 13.05.2025
passed against the appellants herein, after affording them
due opportunity of hearing, therefore, cannot be sustained.
The appellants are required to obey the directions issued by
the learned Single Judge.
20. However, it is provided that after eviction from the plots
in question, it would be open for the appellants herein to
move individual applications to seek benefits under the
Regulations for Rehabilitation and Redevelopment of Slums,
2010, before the competent authority, who would be then
required to consider the claim of the appellants for
rehabilitation under the Rehabilitation of the provisions of
Slums Act, 2020, if the same is applicable in the case of the
appellants. We may clarify that we have not gone into the
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merits of the claim of the appellants to seek any such
consideration and the concerned authority is required to take
an independent decision strictly in accordance with law.
21. Subject to the above observations and directions, the
present appeal stands dismissed. No order as to costs.
Connected civil application also stands disposed of.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
VARSHA DESAI
