P. R. GOKULAKRISHNAN, J.

( 1 ) THIS Special Civil Application ;b preferred for issuance of a writ of mandamus or any other appropriate writ order or directions in the nature of mandamus by quashing and setting aside the show cause notices at Annexures A and B and directing the respondents to treat it as null and void.

( 2 ) THE short facts of this case are that Plot No. 170/1 was originally owned by respondent No. 4 herein. This Plot was divided into Plot Nos. 165/1 and 165/2. Plot No. 165/1 admeasures 457. 40. 65 Sq. Mtrs. while Plot No. 165/2 admeasures 229 12. 50 Sq. Mtrs. respectively.

( 3 ) UNDER the Town Planning Scheme in place of original Plot No. 170/1 which was acquired Plot No. 165/1 was given back to the respondent No. 4 who is the original owner of Plot No. 170/1. It is alleged by the petitioners that the petitioners herein were the original tenants under respondent No. 4 in respect of original Plot No. 170/i. After the division of this Plot and alloting Plot No. 165/1 to respondent No. 4 the petitioners continued to live in Plot No. 165/2 which was given to another person under the Town Planning Scheme; but in 1978 the final scheme of the Town Planning came into force while in 1965 the preliminary scheme came into force. In respect of this Plot No. 165 on which the petitioners are residing and which came to be allotted to the person whose Plot No. 308 was acquired by the Town Planning Officer the Anand Urban Development Authority is trying to evict the petitioners who are on Plot No. 165/2. In those circumstances after getting notices referred to above the petitioners have now come forward with the present Special Civil Application before this Court.

( 4 ) MR. Pradeep Roye the learned Counsel appearing for the petitioners on pointing out the Secs. 68 and 81 of the Town Planning Act contended that these petitioners cannot be evicted without following the procedure. Section 68 of the Act reads as under:"68 On and after the date on which a preliminary scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme shall in accordance with the prescribed procedure be summarily evicted by the appropriate authority".

( 5 ) READING this Section it is clear that the petitioners are continuing to occupy the land and as per the Town Planning Scheme which has become final as early as in 1978 this Plot has been allotted to a third party who is not even a party respondent herein. As correctly laid down in the case of Saiyed Mohamed v. Ahmedabad Municipal Corporation reported in [1977] XVIli GLR S49 the eviction power vested with the authority would be merely an administrative power of eviction and such eviction would be of the same nature as of the persons who are evicted under the provisions of the Land Acquisition Act. The petitioners have been put on notice and questioning the same only the petitioner have come forward with the present Special Civil Application. Considering these facts we do not think that there is any violation of Sec 68 of the Town Planning Act in evicting the petitioners herein.

( 6 ) SECTION 81 of the Town Planning Scheme reads as under:"81 Any right in an original plot which in the opinion of the Town Planning Officer is capable of being transferred wholly or in part without prejudice to the making of a town planning scheme to a final plot shall be so transferred a any fight in an original plot which in the opinion of the Town Planning Officer is not capable of being so transferred shall be extinguished:provided that an agricultural lease shall not be transferred from an original plot to a final plot without the consent of all the parties to such lease".

( 7 ) ON reading this Section it is clear that this Section is intended for adjustment of the land which has been put under the Town Planning Scheme. Such adjustment can he done without prejudice to the making of the Town Planning Scheme. Section 52 of the Act deals with the contents of p

Click Here to Read the rest of this document