The main legal point established in the judgment is the need for the appeal committee to reconsider the case of the petitioners in true letter and spirit of Section 67A of the Gujarat Town Planning and Urban Development Act, 1976, and in accordance with the procedure prescribed therein.

JUDGMENT :

A.Y. KOGJE, J.

1. Rule. Learned advocate Mr. Deep Vyas waives service of rule on behalf of respondent No. 2 and learned AGP waive service of rule on behalf of respondent Nos. 1 and 3.

2. This petition under Article 226 of the Constitution of India is filed by the petitioners for quashing and setting aside the order dated 28.06.2016 passed by the committee under the Urban Housing and Urban Development Department (UDHD) in a case being TPS/52 (North Ghodasar)/Sec. 67/4184. The petitioners had prayed for implementing of the town planning scheme No. 52-Ghodasar North by earmarking and handing over the vacant and peaceful possession and allotting separate final plot against the land bearing originally Hissa No. 2 of Survey Nos. 274+284+285 of village Ghodasar. In the alternative, the petitioners have also sought direction to the respondents to make allotment of Final Plot No. 103 or any other plot in the same scheme bearing identical measurements as the land bearing Hissa No. 2 of Survey Nos. 274+284+285 of village Ghodasar.

3.1 It is the case of the petitioners that the original survey Nos. 274, 284 and 285 of village Ghodasar were sold since 1942 from time to time and ultimately, the family members of the petitioners proposed to purchase part of the aforesaid survey numbers admeasuring 4593 Sq. mtrs, under agreement to sale in the year 1994. The aforesaid transfer was not a clear sale, but an understanding between the original owner and the petitioners herein in connection with the aforesaid land. It appears that the draft town planning scheme was framed and in that scheme, a road was carved out which was passing through the land identified as Hissa No. 2 and therefore, original owners made representations to the respondent authorities, objecting to carving out of the road through the land. It appears that on 31.07.2000, a notice came to be issued to the petitioners for vacating lands so as to enable the respondent-corporation to use the land for laying down of a water line. Against which also a representation was made however, in the draft town planning scheme, four final plots being 46/1, 46/2, 46/3 and 46/4 were proposed to be allotted to all the owners jointly of the land bearing survey Nos. 274, 284 and 285. At that time also, the authorities were made aware about the fact that the said Hissa/portion of the land jointly owned by different owners.

3.2 It is submitted that there were internal disputes about the joint plots on the original survey numbers by which Civil Suit was also filed. Reference is made to Civil Suit No. 2307 of 2003 by the plot holders against the State Government and Town Planning Authorities. In the said civil suit, relief was sought that the plaintiffs be allotted final plot in the open land of the original plot No. 40 or any other plot which is an open land. By way of interim relief, the City Civil Court directed the corporation not to disturb the possession of the plaintiffs therein, till finalization of the town planning scheme. On account of the said order, on 10.12.2004, the Town Planning Officer had called upon the interested person in the plot to make submissions. At that time also, interested persons had requested the Town Planning Officer to carve out final plots in a fashion so that they may get an open land against the land deducted for the town planning scheme. Thereafter, again when the scheme was sanctioned and the owners were allotted joint plots, another Civil Suit No. 495 of 2006 came to be filed contending that there was partition amongst the joint owners. It is submitted that after the issue with regard to the original joint owners of the plot in question was settled, the original owner of the part of the plot with which the petitioners are concerned, one Dalpatji and other owners executed a registered sale deed in 2008 in favour of the petitioners and the revenue entries in that regard were also posted and according to the rights adjudicated, Hissa No. 2 admeasuring 4593 Sq. mt