NAVINCHANDRA NANALAL KIKLAWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The facts of these three cases present a lis between the three petitioners viz. Navinchandra Nanalal Kiklawala and another, its tenant Pachubhai Matrubhai Pathak and Adulhusain Rasulbhai Kagalwala Trust and Dahod Nagar Palika. The dispute centres around the town planning scheme which was sanctioned on 2-6-1977 and published on 30/04/1981. Since the subject matter of controversy of all the three petitions is with regard to the implementation of this town planning scheme dated 2-6-1977, the Court proposes to decide all these three Special Civil Applications by this common Judgment and order. The land of the petitioners in Special Civil Application No.9468 of 1996 was originally allotted Revenue Survey No.3/E and thereafter City Survey No453/E admeasuring about 2156 sq.mtrs. Adjacent to the aforesaid land, there was plot bearing Revenue Survey No.2/A belonging to Abdulhussein Rasulbhai Kagalwala Trust (the petitioner in SCA 2462 of 1998). This plot of Abdulhussein Rasulbhai Kagalwala Trust was a plot admeasuring 2059 sq.mts. Certain construction was put up on the aforesaid plot bearing Revenue Survey No.2/A by the above mentioned trust. With reference to the Bombay Town Planning Act, 1955, a town planning scheme for Dahod came to be finalised after following the due procedure of law, being Town Planning Scheme No.1 of Dahod. This finalised scheme dated 2-6-1977 was published in the official gazette on 30-4-1981. According to this scheme, the plots belonging to the petitioners in Special Civil Application No.9468 of 1996 and Abdulhussein Rasulbhai Kagalwala Trust were reconstituted and certain portion of plot bearing Survey No.3/E was hived off for the purpose of garden and open air theatre and it was allotted final Plot No. 88 under the Town Planning Scheme. As compensation for the aforesaid land, the petitioners of Special Civil Application No : 9468 of 1996, were allotted certain portion of the land admeasuring 916.62 sdq.mtrs plot bearing Revenue Survey No.2/A out of the land belonging to the aforesaid trust. The reconstituted plot No. 3/E of the petitioners in Special Civil Application No.9468 of 1996 was allotted as Final Plot No.19 admeasuring about 1670.25 sq.mtrs. Under this scheme, the plot bearing Survey No2/A belonging to the trust was allotted Final Plot No.20 admeasuring 1142 sq.mtrs. Whereas the portion of the plot, bearing survey No.2/A belonging to the trust which came to be allotted to the petitioners in Special Civil Application No.9468 of 1996 by way of reconstitution, was in possession and occupation of the trust, the grievance of the petitioner in Special Civil Application No.9468 of 1996 is that they could not enjoy the possession of the aforesaid portion of the property and therefore they represented to the Department of Urban Development and Town Planning, Gandhinagar and the Dahod Nagarpalika for ensuring that vacant and peaceful possession of the aforesaid property be handed over to them. It may also be mentioned that one Shri Pachubhai Matrubhai Pathak the petitioner in Special Civil Application No : 7895 of 1997, claims to be tenant in the part of the property in question belonging to the petitioners in Special Civil Application No.9468 of 1996. The grievance of the petitioners in Special Civil Application No.9468 of 1996 is that Dahod Nagar Palika did not implement this Town Planning Scheme despite their repeated requests and on 27/06/1989 for the first time, they were served with the notice to hand over the vacant possession of the part of the original plot No.19 reconstituted as Final Plot No.88 under the aforesaid Town Planning Scheme. The trust was also issued similar notice to hand over the vacant and peaceful possession of the part of the plot bearing Revenue Survey No.21 A reconstituted as part of the Final Plot No.19. The petitioners in Special Civil Application No.9468 of 1996 sent a letter to the Administrator of Dahold Nagar Palika on 1 8/06/1994 requesting to obtain possession of the part of the Plot bearing Revenue Survey no.2/A which was still in possession of the trust and they also addressed a letter dated 3rd September, 1996 to the Department of Urban Development and Town Planning as also Dahod Nagar Palika to discharge their statutory functions. When the efforts as above did not yield any result, the petitioners in Special Civil Application No.9468 of 1996 filed Special Civil Application as above, seeking direction against the respondent Nagar Palika to hand over vacant and peaceful possession of the entire reconstituted plot. This Special Civil Application was decided and allowed by the Single bench of this Court on 4/07/1997 and a direction was issued to the respondent Municipality to discharge their statutory functions and duties and hand over vacant and peaceful possession of the property allotted to the petitioners under the Scheme and for that purpose 9 (nine) months time was granted to comply with their obligations under the scheme and the rule was made absolute accordingly. It may be mentioned that the petitioner Pachubhai Matrubhai Pathak i.e. petitioner in Special Civil Application No.7895 of 1997 was not a party to these proceedings in Special Civil Application No.9468 of 1996. This petitioner Pachubhai Matrubhai Pathak instead of availing remedy of filing Letters Patent Appeal in his capacity as aggrieved party against this order dated 4/07/1997, preferred Special Civil Application No.7895 of 1997 in October, 1997 seeking direction for possession of part of the final plot No.19 in the Town Planning Scheme No.1 of Dahod Nagar Palika admeasuring 1050 sq.mtrs. and further relief is sought that his possession may not be disturbed without allotting him any other land. However, the trust i.e. the petitioner in Special Civil Application No : 2468 of 1998 challenged the order dated 4/07/1997 passed by the Single Bench in Special Civil Application No. 9468 of 1996 through Letters Patent Appeal No. 379 of 1998. This Letters Patent Appeal was decided and allowed on 1-5-1998 on the ground that the appellant which was initially a party was deleted had no opportunity of having his say in the matter and the case was decided on merits by the Single Bench. On this basis, the order dated 4/07/1997 was set aside and the matter was remanded back for decision in Special Civil Application No.9468 of 1996 by the Division Bench in terms of its order dated 1-5-1998 and this is how this Special Civil Application No.9488 of 1996 has again come up for hearing. However, the trust had also filed Special Civil Application No.2462 of 1998 in March, 1998 seeking an order not to disturb its possession of Final Plot No.20 of Town Planning Scheme No.1 of Dahod Nagar Palika admeasuring 900 sq.mtrs. without allotting other land to the said trust. Thus, the petitioners in these three Special Civil Applications i.e. Special Civil Application No.9468 of 1996 filed on 4-11-1996, Special Civil Application No : 2462 of 1998 filed on 26th March, 1998 and Special Civil Application No.7895 of 1997 filed on 22/10/1997 are before this Court and while the petitioners in Special Civil Application No.9468 of 1996 are seeking direction for implementation of Town Planning Scheme No.1 as aforesaid, the petitioners in Special Civil Application No : 7895 of 1997 and 2462 of 1998 are seeking direction not to disturb the possession of the portion of the land held by them in the land which is the subject matter of the Town Planning Scheme.

(2.) While no written reply has been filed on behalf of the State of Gujarat through concerned Department i.e. Urban Development and Town Planning, Dahod Nagar Palika has sought to contest this petition on the ground that it has asked the Town Planning Department to vary the scheme so that it does not have to face an ordeal of the procedure for eviction of either the trust / its tenant or the aforesaid petitioners Pachubhai Matrubhai Pathak. In order to show that it has applied for variation in the Town Planning Scheme, an additional affidavit dated 25th November, 1998 along with the document - letter dated 5-11-1998 and the Resolution passed by the Dahod Nagar Palika has been placed on record today during the course of arguments by the learned counsel Mr.M.R.Shah.

(3.) I have heard learned counsel for all the parties. There is no dispute about finalisation of the Town Planning Scheme way back on 2-6-1977 and its publication on 30-4-1981. Dahod Nagar Palika was also under obligation to implement the said scheme in accordance with law keeping in view the rights of all concerned but the implementation has not been done only on the ground that it has applied for variation of the scheme. For this purpose, Mr.Shah has made reference to Section 71 of the Gujarat Town Planning and Urban Development Act, 1976. Section 71 reads as under;