Ganpatbhai Babulal Patel vs State of Gujarat and Others

Akil Kureshi, J.—Petitioner has challenged a notice dated 16.05.2001 issued by the Unjha Nagarpalika in exercise of the powers under the Gujarat Town Planning and Urban Development Act (''T.P. Act'' for short).

Shortly stated the facts of the petition that the petitioner claims to be occupying as tenant of a plot situated in the Unjha Municipality area belonging to the respondent No. 4 & 5 herein. Respondent No. 4 & 5 held Original Plot No. 1025. Original Plot No. 1025/1 under the Town Planning Scheme was allotted Final Plot No. 160 with which we are not directly concerned. Out of Original Plot No. 1025/2, Final Plot Nos. 161 and 162 were carved out. Final Plot No. 161 was allotted to the owners i.e. respondent Nos. 4 & 5. Final Plot No. 162 was earmarked for public purpose for sale for industrial use. Petitioner claims that he is running an industry which is situated on both Plots No. 161 & 162.

It is not disputed that respondent Nos. 4 & 5 had filed Civil Suit No. 36 of 1998 before the competent Civil Court seeking eviction of the petitioner from the said plots. It appears that the suit has since been dismissed for default, in the mean time, Unjha Municipality issued impugned notice calling upon the petitioner to do the following three things.

directing the petitioner to remove the construction of Varanda etc. put up by him in the Original Plot No. 1025/2.

to remove construction from Final Plot No. 162 which is reserved for industrial purpose.

to remove construction from Final Plot No. 161 and 178 to enable the Municipality to hand over vacant possession to the plot owners.

It may be noted that we are not concerned with the directions for removal of the construction from Final Plot No. 178 and I have focused my attention only to first part of the said direction requiring the petitioner to remove his construction from Final Plot No. 161.

Having heard learned advocates appearing for the parties, I find that so far as directions No. 1 & 2 noted above in the impugned notice are concerned, no interference is called for. Said directions are only in furtherance to the implementation of the Town Planning Scheme which has become final. Petitioner cannot oppose construction of Town Planning road or prevent Municipality from taking over vacant possession of the Plot No. 162 which is allotted to the Municipality and is reserved for public purpose for industrial use.

Learned advocate for the petitioner also did not seriously dispute this proposition. He, however, invited my attention to the interim order dated 03.10.2001 by which the learned Single Judge of this Court while admitting the petition had provided that so far as Clause B of the notice is concerned, it is open for Unjha Municipality to hold public auction in respect of the Final Plot No. 162 and the petitioner would be entitled to participate in such public auction. It was submitted that no such public auction has since then been held.

The above interim provision was only enabling one and did not mandate the Municipality to hold public auction or to permit the petitioner to participate in such public auction proceedings.

In so far as the third condition is concerned, viz. requiring the petitioner to hand over vacant possession of the Plot No. 161 after removing construction, I however find that same is beyond the authority of the municipality. From narration of the facts noted above, it becomes clear that even as per the respondent Nos. 4 & 5, the petitioner was occupying the land prior to the finalization of the Town Planning Scheme. It was precisely for this reason the respondent Nos. 4 and 5 had filed civil suit seeking eviction of the petitioner from the said land. Whatever outcome of the suit, the fact remains that respondent No. 4 & 5 also recognized occupancy of the petitioner on the said land. It was, therefore, not duty of the municipality to have petitioner evicted to hand over vacant possession of Final Plot No. 161 to the original land owners.

Learned advocate Mr. P.K. Jani for the respondent Nos. 4 and 5, however, submitted that the petitioner had not raised any objection to the Town Planning Scheme being finalized and in that view of the matter, the petitioner cannot oppose implementation of the Town Planning Scheme which is being done through the impugned notice.

He invited my attention to the decision of the Hon''ble Supreme Court in the case of Babulal Badriprasad Varma Vs. Surat Municipal Corporation and Others, as well as decision of the learned Single Judge of this Court in the case of Kanjibhai Dahyabhai Malsattar v. State of Gujarat reported in 2005 (2) GLH 515.

It is true that the petitioner had not raised any objection when the Town Planning Scheme was being implemented. Contention of the learned advocate for the respondent Mr. Jani would have been valid if there was any dispute about the occupancy of the petitioner. However, respondent No. 4 and 5 themselves as noted above, have filed civil suit seeking decree of eviction against the petitioner. The situation may also would have been different had through framing and implementation of the Town Planning Scheme, respondent No. 4 and 5 were being allotted Final Plot at some other places occupied by the petitioner. The present case is peculiar one. The petitioner was occupying plot of ownership of the respondent Nos. 4 and 5 from which Original Plot, Final Plot No. 161 and 162 were carved out. If the said Condition No. 3 contained in impugned notice is allowed to operate, the same would amount to authorizing the municipality to evict the petitioner from occupancy of the plot belongs to the respondent Nos. 4 and 5 which occupancy the petitioner was enjoying even before finalization of the Town Planning Scheme. No provision is pointed out to permit municipality to do so.

In case of Babulal Badriprasad Varma v. Surat Municipal Corporation and Ors. (Supra), the Apex Court was examining the case where a person claiming to be a tenant of plot of land, part of which, was being utilised for road widening under the Town Planning Scheme. So also, in case of the Kanjibhai Dahyabhai Malsattar v. State of Gujarat, the learned Single Judge of this Court was examining the situation where the tenant was seeking to oppose road widening pursuant to the Town Planning Scheme.

Perhaps in absence of admitted occupancy of the petitioner of the plot in question, prior to finalization of Town Planning Scheme, his not raising objection when the Town Planning Scheme was being framed, would have been fatal. However, in the present case, the petitioner is admittedly occupying the land in question even prior to the finalization of the Town Planning Scheme. In fact, as already noted, respondent Nos. 4 and 5 had earlier resorted to civil proceedings for eviction of such occupancy. Considering all these aspects of the matter, I find that Unjha Municipality erred in directing the petitioner to hand over vacant possession of Final Plot No. 161 to enable the Municipality to put respondent No. 4 and 5 in vacant possession of the plot in question.

For the above reasons, so far as Clause-A and B in the impugned notice are concerned, the same are not interfered with. However, with respect to the Clause C of the impugned notice, the same is quashed. Nothing stated above will prevent the parties from seeking appropriate remedy from the competent Civil Court, if so advised.

With these directions, petition is disposed and stands allowed to the above limited extent.

Rule is made absolute accordingly.