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2011 (2) GCD 1460 (Guj)
Hon’ble Mr. Justice M.R. Shah
Jiviben Hansrajbhai Patel WD/o Hansrajbhai Devjibhai Patel & Ors.
Versus
State of Gujarat - Through Secretary & Ors.
Special Civil Application No. 16550 of 2010—Decided on 04/04/2011
Constitution of India, 1950 — Article 226 — Demarcate the final plots allotted to petitioner — Direction requested against respondents — Scope of — Finding as to — Original land bearing Survey No. 123 was held by petitioners jointly — Under the Final Town Planning Scheme No. 1 Jamnagar they are allotted Plots No. 64, 68, 90, 93 — The rest of the land of Survey No. 123 which is now given No. 73, 63, 65, 91 and 92 and it is reserved for public purposes and for road and petitioner are required to hand over possession of the same to appropriate authority — In this regard notice dated 08.05.2008 is served on petitioners — Court did not find any thing wrong in the notice and contention of petitioner that they have been allotted less land than covered under original Plot No. 123 can not be heard now because scheme has become final — Hearing was required to be given only with respect to enforcement of the Scheme — Court, therefore, issued direction to the appropriate authority to demarcate the final plots allotted to petitioners.
Held :
Considering the fact that the Town Planning Scheme has become final and the respective owners of original land bearing survey No. 123 are allotted Final Nos. 64, 68, 90 and 93 total admeasuring 63688 sq.mtrs. of land and the rest of the land out of the land bearing Survey No. 123 total admeasuring No. 33436.46 sq.mtrs. has been given Final Plot Nos.73, 63, 65, 91 and 92, the respective occupiers / original land owners of land bearing survey No. 123 are required to hand over the peaceful and vacant possession of the Final Plot No. 73, 63, 65, 91 and 92, which are reserved for public purpose and the rights of the respective parties are to be determined as per the re-constitute plots under the Final Town Planning Scheme. Under the circumstances, it cannot be said that order passed by the appropriate authority dated 8.5.2008 is in any way illegal and / or contrary to the provision of law. The aforesaid notice has been issued for implementing of the Town Planning Scheme which has become final. Even as per the earlier order passed by this Court in Special Civil Application No. 7806 of 1988, and as observed by the learned Single Judge the legality and validity of the Town Planning Scheme, which has become final, is not required to be considered at all and the hearing was required to be given only with respect to enforcement of scheme, which has become final. Under the circumstances, contentions and objections raised by the petitioners of Special Civil Application No. 7732 of 2008 with respect to measurement of the original land bearing survey No. 123 etc. cannot be considered at this stage now. Even considering the earlier order passed by this Court, legality and validity of the Town Planning Scheme was not required to be considered at all and it was only for the enforcement of the Town Planning Scheme. Under the circumstances, on the aforesaid ground and the objections raised by the petitioner of Special Civil Application No. 7732 of 2008 the order passed by the appropriate authority dated 8.5.2008 is not required to be quashed and set aside. [Para 10.1]
Law Laid Down :
Notice to occupiers of land covered under Town Planning Scheme to hand over peaceful possession cannot be faulted after the Scheme has become final.
M.R. Shah J.—By way of Special Civil Application No. 16550 of 2010, the respective petitioners of that Special Civil Application i.e. Jiviben Hansrajbhai Patel and others have prayed for the following relief:
A. That this Hon’ble Court be pleased to issue writ of mandamus, writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents, their agents and servants to demarcate the final plot which is allotted to the petitioners and handover vacant and peaceful possession of the same to the petitioners;
B. That this Hon’ble Court be pleased to issue writ of mandamus, writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents, their agents and servants to add 1 Acre and 10 Gunthas of land which is in the co-ownership property of the petitioners and respondent No. 4 and 5, as per the revenue entry No. 4138 and 4139, as mutated in Village Form No. 6 on 8.6.1976 and village Form No. 8-A in pursuance to the Kami Jasti Patrak of 25.2.1949;
2. Shri B.B. Naik, learned Senior Advocate appearing on behalf of the petitioners does not press the prayer in terms of Para 27 (b) and seeks permission to withdraw the present Special Civil Application unconditionally with respect of para in terms of 27(b) and has requested to consider the prayer of the petitioners with respect to prayer in terms of 27(a) only and that too TO demarcate the Final Plot Nos. 64, 68, 90 and 93 total admeasuring 63688 sq. mtrs. of land which have been allotted jointly to the original owner of the land bearing Survey No. 123. Hence, present Special Civil Application is dismissed as withdrawn unconditionally so far as prayer in terms of para 27(b) is concerned.
3. It is not in dispute that all the joint owner of land bearing Survey No. 123 i.e. Keshavji Devji Patel and Hansraj Devji Patel and Ravji Devji Patel are allotted Final Plot No. 64 admeasuring 2380 sq. mtrs; Final Plot No. 68 admeasuring 13551 sq.mtrs; Final Plot No. 90 admeasuring 10699 sq.mtrs and Final Plot No. 93 admeasuring 37058 sq.mtrs total admeasuring 63688 sq.mtrs. under the Final Town Planning Scheme No. 1, Jamnagar. All the original owners are allotted the aforesaid plots jointly. Shri B.B.Naik, learned advocate for the petitioners has submitted that if a suitable direction is issued directing the appropriate authority to demarcate the Final Plot No. 64, 68, 90 and 93 as per the Town Planning Scheme, which are allotted to the respective original owners jointly, the petitioners would be satisfied, It is submitted that for inter se dispute between the parties and/ or with respect to inter se share of the parties, petitioners may initiate appropriate proceedings before the Civil Court. Therefore, petition is restricted to the aforesaid prayer of demarcation of the aforesaid Final Plots only.
4. Shri J.R. Nanavati, learned advocate for the appropriate authority has submitted that respondent authority has no objection if suitable direction is issued directing the appropriate authority to demarcate the aforesaid Final Plot Nos. 64, 68. 90 and 93, which are allotted jointly to the respective persons i.e. original owner Keshavji Devji Patel, Hansraj Devji Patel and Ravji Devji Patel. However, has requested that occupiers of original land bearing Survey No. 123 are required to hand over the peaceful and vacant possession of the Final Plots No. 73, 63, 65, 91 and 92, which are allotted out of the original land bearing survey No. 123 under the Final Town Planning Scheme, which the respective occupiers cannot occupy and for which Special Civil Application No. 7732 of 2008 has been preferred.
5. Shri Viral Shah, learned advocate for the private respondent of Special Civil Application No. 7732 of 2008 has submitted that as such some of the parties have already filed Civil Suit with respect to partition. He has also further submitted that even the dispute with respect to mutation is pending before the Revisional Authorit
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