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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
PATEL HARIBHAI BHUTABHAI - SINCE DECEASED - Appellant
Versus
STATE OF GUJARAT & others - Respondent
SPECIAL CIVIL APPLICATION NO. 14561 of 2015
Decided On : 24-12-2021
Constitution of India, 1950 - Article 226 – Writ petition - Writ of mandamus - Urban Land (Ceiling and Regulation) Act, 1976 - Gujarat Town Planning and Urban Development Act, 1976 - Section 70(2), 71 - During life time of deceased grandfather of petitioners, a partition was effected between deceased and father of petitioners and his brother - Petitioners submits that lands were partitioned holding of petitioners as heirs should have been treated as an independent holding which was an agricultural open land without any construction standing on land admeasuring acres 13-15 gunthas - According to petitioners, on an average deduction of 23%, petitioners would be entitled to land admeasuring 41,678 sq. mtrs. - Municipal Corporation informed State that they would give consent to proposal for variation by placing same before General Body of Corporation - State requested Corporation to proceed for variation in accordance with law - Municipal Corporation wrote a letter to State that decision be taken by State Government for varying scheme - In view of fact that if petitioners’ request for individual allotment was accepted deduction of 23% based on such independent allotment would entail petitioners of a larger piece of land - Representations were made by petitioners from time to time and since they were not considered present petition was filed - Respondent authorities have not adhered to directions issued by this Court – Held, case of petitioners seeking variation is on ground that had he been allotted an independent plot rather than a joint holding, joint allotment of final plot considering fact that deceased had sold his plot on which constructions were made resulted in a deficit of open space being allotted to him - Constructions were regularized by State on payment of impact fee - There was no open land on which possession could be taken on - Even adjacent lands of other agriculturists had constructions on it - It was in this context that letter opined that variation under Section 70(2) was not possible however what can be done was an exercise could be taken under Section 71 of Act - When communication is read in light of provisions of Sections 70 and 71 of Town Planning Act which are reproduced, it cannot be said that scheme is defective on account of an error, irregularity or informality - Petition is dismissed.
ORDER :
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ of mandamus or any other appropriate writ directing the respondents to decide the representation dated 06.09.2012 as per the order dated 23.08.2012 passed by this Court in Special Civil Application No. 6903 of 1990 read with the order dated 02.08.2013 passed by the respondent no. 1 – the State of Gujarat and the recommendation dated 24.03.2014 given by the Rajkot Municipal Corporation.
2. When this petition was initially heard, this court by an order dated 03.12.2015 disposed of the petition observing that the petitioner will have a liberty to revive the petition.
3. Facts in brief are as under:
3.2 It is the case of the petitioners that under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, lands of the petitioners’ father and that of Bhikhabhai Patel were granted agricultural exemption. However, in case of Bhikhabhai Bhutabhai Patel, the exemption was withdrawn on 19.04.1990 in view of the fact that he sold the land to one Kedarnath Co-operative Housing Society Limited on which the construction is completed. The Town Planning Scheme was declared on 16.04.1977 at which time the deceased father was the sole owner. Partition was made of the lands and land admeasuring 54,127 sq. mtrs of revenue survey no. 252 paiki, 253 paiki and 254 paiki came to the share of the petitioners whereas land admeasuring 48,563 sq.mtrs of revenue survey no. 252 and 253 paiki came to the share of Bhikhabhai Bhuthabhai Patel. It is the case of the petitioners that in view of the partition, the petitioners’ father and Bhikhabhai Patel were independent owners, however, as per the final town planning scheme Haribhai and Bhikhabhai were jointly allotted 49,958 sq. mtrs and 28,177 sq. mtrs respectively with a remark that the rights and shares enjoyed by the owners in original plots will be as it is in the ‘Final Plots’.
3.3 It is the case of the petitioners that since the lands were partitioned the holding of the petitioners as heirs should have been treated as an independent holding which was an agricultural open land without any construction standing on the land admeasuring acres 13-15 gunthas equivalent to 54,127 sq. mtrs. According to the petitioners, on an average deduction of 23%, the petitioners would be entitled to land admeasuring 41,678 sq. mtrs.
3.4 The case of the petitioners is that Bhikhabhai had sold the land on which there were constructions. The joint allotment therefore was detrimental to the petitioners inasmuch as larger deduction was made in the share of the petitioners. Moreover, open vacant lands on the final plots were kept for reservation by allotting final plots no. 190 and 191. Special Civil Application No. 6903 of 1990 was filed in which the court on 23.08.2012 directed the respondents to consider the representation for variation. Accordingly the petitioners made an application on 06.09.2012. On 02.08.2013, the respondent no. 1 passed an order opining that there is substance in the petitioners’ request for variation and a decision therefore may be taken by the Rajkot Municipal Corporation under Section 70(2)
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