Point of Law: it is clear that, where there is a disputed claim to the ownership of any place of land included in an area in respect of which a declaration of intention to make a scheme has been made and any entry in the record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, then only the Town Planning Officer is required to make a reference as provided under Section 46 of the Act, 1976, prior to the date on which the Town Planning Officer draws up the preliminary scheme under section 51 to such officer as the State Government may appoint for the purpose of deciding as to who shall be deemed to be the owner for the purpose of this Act.

ORDER :

Heard learned advocate Mr. Nishit Gandhi with learned advocate Mr. S.P. Majmudar for the petitioner and learned advocate Mr. Maulik Nanavati for Nanavati and Co for respondent nos. 2 and 3 through video conference.

1. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

“(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and set aside the impugned notice dated 12.06.2020 issued by the Town Planning Officer (at ANNEURE – F hereto) and further be pleased to direct the Town Planning Officer to show the name of the petitioner as the person who would be entitled for the land situated at Harni, TalDist. Vadodara being Original Plot No.89/1, Final Plot No.47 of Town Planning Scheme No.2 (Harni), Vadodara;

(B) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to direct the respondent authorities to maintain statusquo with regard to the land in question;

(C) Pass and such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.”

2. Brief facts of the case are that the petitioner is claiming the ownership of part of the land situated at Revenue Survey No.292/1 which is given Original Plot No.89/1 in Town Planning Scheme No. 2 (Harni) Vadodara.

3. It is the case of the petitioner that land in question originally belonged to Late Shri Vikramsinh Khanderao Gaekwad and during his lifetime, he had executed an agreement to sale in favour of the petitioner on 15.05.1991. According to the petitioner, late Shri Vikramsinh Khanderao Gaekwad also executed a Will in favour of the petitioner on 15.05.1991.

4. According to the petitioner, late Vikramsinh Khanderao Gaekwad expired on 28.06.2007. As there were disputes with regard to the entry of Will, a Special Civil Suit No. 229 of 2015 was instituted for the property in question, wherein by order dated 29.07.2019 passed below Exh.5, the trial Court has ordered to maintain status quo by the respective parties.

5. It is the case of the petitioner that after the Town Planning Scheme No.2 (Harni), Vadodara was introduced with regard to the land in question, the petitioner made a representation to the Town Planning Officer on 10.12.2019 and the Town Planning Officer without considering the representation made by the petitioner issued the notice dated 12.06.2020 addressed to Vikramsinh Khanderao Gaekwad and Vijaysinh Khanderao Gaekwad under sub-rule (9) of Rule 26 of the Gujarat Town Planning and Urban Development Rules, 1979 (for short 'the Rules').

6. It is the case of the petitioner that only because the name of the petitioner is not entered into the revenue records of the property in question, the Town Planning Officer did not recognize the right of petitioner over the property in question, though the Will executed in favour of the petitioner is not set aside by any competent Court or authority and as such, the petitioner is entitled to the final plot under the Town Planning Scheme.

7. Learned advocate Mr.Gandhi appearing for the petitioner submitted that the Town Planning Officer could not have issued the impugned notice dated 12.06.2020 for intimating the decision taken by him under SubSection (3) of Section 52 of the Gujarat Town Planning and Urban Development Act, 1976 (for short 'the Act, 1976') in the names of late Vikramsinh Khanderao Gaekwad and Vijaysinh Khanderao Gaekwad as the petitioner is occupant of the part of the land in question of the revenue survey no.292/1 which is given the Final Plot No.47 admeasuring 3925 sq. mtrs. According to Mr.Gandhi, the Town Planning Officer ought to have considered the representation of the petitioner dated 10.12.2019 wherein the petitioner has stated that the petitioner is entitled to the land admeasuring 728.5 sq. mtrs. which is purchased by him by agreement to sale as well as