ORAL ORDER

[1] This petition under Article 226 of the Constitution of India is filed by the petitioners seeking direction to the respondent-corporation to implement the sanctioned Final Town Planning Scheme No.128 (Vatva-Aslali) by handing over the possession of final plot Nos.79/1, 78/8, 112/5 and 78/1 of Vavta, Taluka and District: Ahmedabad, which were allotted to the petitioners. The petitioners were also prayed that the original plots which were reconstituted from the survey numbers of village Vatva and in occupation of the petitioners may not be disturbed till the final plots are allotted to the petitioners.

[2] It is the case of the petitioners that the petitioners who are owners of land bearing survey Nos. 157/1, 190/1/1, 156/2/2 and 156/1/1/3 of village Vatva. With the sanctioning of the draft Town Planning Scheme No.128, survey numbers running in the name of the petitioners were reconstituted as original plots nos. 79/1, 78/8, 112/5 and 78/1. Upon the primary town planning scheme being sanctioned, the plots of lands allotted to the petitioners were final plot Nos. 79/1, 78/8, 112/5 and 78/1. According to the petitioners, there exist illegal encroachment on the aforesaid final plots allotted to the petitioners and after sanctioning the preliminary town planning scheme, the petitioners are entitled to vacant and peaceful possession of the final plots. Further, the petitioners are not yet given till date the vacant and peaceful possession of the final plots on one hand, however at the same time with the sanctioning of the town planning scheme, while accepting/implementing such scheme, the petitioners will have to handover the vacant and peaceful possession in the original plots reconstituted from the survey numbers running in the name of the petitioners.

[3] Learned senior advocate Mr. Jal Soli Unwala appearing for the petitioners submitted that the petitioners had made request to the respondent-authorities namely the Municipal Corporation which is the implementing authority of the Town Planning Scheme, bringing to their notice about this aspect, however, nothing has been done by the respondent-corporation. Inspite of the above fact situation, the petitioners have been served with the notice which is placed at Annexure-D with respect to original plots number 79/1 under Section 48A and 68 of the Gujarat Town Planning and Urban Development Act, 1976 (for short “the Act”) read with Rule 33 of the Gujarat Town Planning and Urban Development Rules 1979 (for short “the Rules”).

[4] As against which the petitioners did make detailed representation on 07.12.2020 and 01.02.2021, indicating that town planning scheme has not been finalized for more than a decade and that unless the possession of the final plot has not been handed over to the petitioners, the original plot may not be disturbed. Despite this, the respondent-corporation is insisting upon to handover the possession of the original plots ostensibly for the purpose of laying down/infrastructure.

[5] Learned senior advocate has argued that action on the part of the respondent-corporation in taking over the possession of the original plots reconstituted from the original survey numbers belonging to the petitioners without handing over the possession of the final plots which even as per the scheme are allotted to the petitioners, is an arbitrary. The petitioners are justified and even as per the scheme, entitled to vacant and peaceful possession of the final plots. It is also argued that the final plots which are allotted to the petitioners were bearing survey No.251 and reconstituted as O.P.No.64/S and on this plot of land there exist residential in the name of Vishva Karma Nagar Vasahat, which is illegal and encroached on the Government land. Despite this, inspite of allotting the final plot to the petitioners, which is free from all encumbrances and encroachment, the petitioners have not been given such final plots. Learned advocate has relied upon the decision in the case