Allowed

Sheth Jamnabhai Baghubhai v. Ahmedabad Municipal Corporation

Gujarat HC15 Nov 2022LPA/1958/2017

Case brief

AI extract

What is this about?

This intra-court appeal set aside a Single Judge order denying a writ petition. The High Court directed the Ahmedabad Municipal Corporation to hand over possession of town planning land allocated to a trust, dismissing the respondent's claim based on an unregistered document and a pending civil suit.

What did the court decide?

Writ of mandamus issued to hand over possession of Plot No.97 (including land in respondent's possession) by removing encroachment forthwith or within two weeks.

Sheth Jamnabhai Baghubhai Vs Ahmedabad Municipal… — Landlord and Tenant | Gujarat HC (2022)

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C/LPA/1958/2017 JUDGMENT DATED: 15/11/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 1958 of 2017 In

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R/SPECIAL CIVIL APPLICATION NO. 19507 of 2017 With CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018 In

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R/LETTERS PATENT APPEAL NO. 1958 of 2017

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============================================= SHETH JAMNABHAI BAGHUBHAI & 5 other(s)

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Versus

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AHMEDABAD MUNICIPAL CORPORATION & 1 other(s)

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=============================================

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Appearance:

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MR MEHUL SHARAD SHAH(773) for the Appellant(s) No. 1,2,3,4,5,6

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MR DEEP D VYAS(3869) for the Respondent(s) No. 1 MR HRIDAY BUCH, ADVOCATE FOR MR. PANAM C SONI(7035) for the Respondent(s) No. 2

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=============================================

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

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and

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HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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Date : 15/11/2022

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ORAL JUDGMENT

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(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

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In this intra-court appeal, the order dated 2.11.2017

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passed in Special Civil Application No.19507 of 2017 is under challenge.

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Page 1 of 29

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We have heard the arguments of Mr. Mehul Sharad Shah, learned advocate appearing for the appellants, Mr. Deep D. Vyas, learned advocate appearing for respondent No.1 and Mr. Hriday Buch, learned advocate appearing for Mr. Panam C. Soni for respondent No.2. Perused the records.

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BRIEF BACKGROUND OF THE CASE:

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Appellant No.1 is a trust of which appellant Nos.2 to 5 are its trustees and is said to be carrying on social and charitable activities in the city of Ahmedabad. The said trust was holding immovable property bearing City Survey Nos.79 and 84 of Village: Dariyapur-Kazipur in Ahmedabad city, which consists of open land, bungalow and place for worship, admeasuring 20570 square yards.

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Respondent No.1 Ahmedabad Municipal Corporation (hereinafter referred to as ‘AMC’) framed a Town Planning Scheme No.8 in the year 1966 which was sanctioned by the State Government on 15.1.1966, which came to be force with effect from 1.3.1966. The property

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of appellant No.1 trust was included in the final town planning scheme and it was assigned the Original Plot No.65 and Final Plot No.97, which also covered a triangular piece of land of Original Plot No.67 owned by Patel Joitaram and others which was amalgamated with the land of the appellant trust and made a part of Final Plot No.97. In other words, the trust was allotted 400 square yards of land from Original Plot No.67. However, possession of the said piece of land (hereinafter referred to as ‘subject land’) was not handed over to the trust.

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Mr. Khurshid Hussein Ismailji who was said to be in possession of Original Plot No.67 and Final Plot No.123 filed Civil Suit No.3012 of 1972 in City Civil Court, Ahmedabad challenging notice issued by AMC to hand over possession dated 12.12.1969 whereunder AMC had called upon him to hand over possession of the subject land. The learned Trial Judge held that notice issued under Section 54 of the Act was in violation of the principles of natural justice and by judgment dated 19.2.1976 decreed the suit and restrained AMC from

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implementing or otherwise executing the said notice. First Appeal No.88 of 1977 filed by AMC challenging said judgment and decree came to be dismissed on 10.9.1987 and thereby affirmed the judgment of the Trial Court.

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Appellants filed Civil Suit No.3240 of 1972 for possession against AMC and aforesaid Mr. Khurshid Hussein Ismailji as well as the owners of Plot No.67 namely, Mr. Parshottamdas Joitaram Patel and Mr. Rambhai Jethalal Patel which came to be decreed by judgment and decree dated 23.2.1976 and directed all the defendants to vacate and deliver possession of the subject land in favour of the plaintiff trust for implementing the town planning scheme and which was included in the reconstituted Final Plot No.97. The first appeal being First Appeal No.549 of 1976 was filed against the said judgment which came to be dismissed as having abated by order dated 9.3.2006. The said order has attained finality.

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In the meanwhile, appellants submitted a representation dated 9.7.2005 (Annexure-B) to the AMC to hand over possession of Final Plot No.97 namely the subject land and said request or prayer it was renewed by communication dated 28.3.2006 (Annexure-C) and again by communication dated 18.7.2007 (Annexure-D) which resulted in a notice being issued by AMC under Section 68 read with Rule 33 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as ‘the Act’) calling upon the noticee Mr. Bharat Ratilal Shah to deliver possession. Challenging said notice, a suit being Civil Suit No.1899 of 2007 came to be was filed which was withdrawn on 19.10.2007 (Annexure-F). Thereafter, another suit being Civil Suit No.2221 of 2007 for declaration and injunction came to be filed on 19.10.2007. The learned Trial Judge initially directed the parties to maintain status quo and subsequently by order dated 9.10.2009 vacated the same and subsequently the suit was dismissed on 12.4.2010.

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Said Mr. Bharat Ratilal Shah filed Civil Misc. Application No.676 of 2012 to condone delay of 750 days in filing restoration application and sought for restoration of the suit. Trial Court vide order dated 6.4.2017, the suit was restored after the delay was condoned by order dated 14.8.2013. It is thereafter the appellants requested AMC to remove the encroachment and hand over the possession of the final plot by submitting a representation dated 15.10.2014 followed by reminders dated 13.11.2014 and 15.6.2015. On account of inaction on the part of AMC, appellants filed Special Civil Application No.19507 of 2017 seeking direction to AMC to act on their representation and to hand over possession of subject property of Final Plot No.97 of Town Planning Scheme No.8 (Asarwa), situated at Girdharnagar, Shahibaug, Ahmedabad.

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In the said Special Civil Application, said Mr. Bharat Ratilal Shah who was claiming to be in possession of subject property was not made a party. The learned Single Judge (as then was) dismissed the same on the

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ground that appellant trust had filed a suit being Civil Suit No.3240 of 1972 against AMC and Mr. Khurshid Hussein Ismailji and two others for handing over possession of the subject land which had been decreed and during the pendency of the suit, said Mr. Khurshid Hussein Ismailji had handed over possession of the subject land to Mr. Bharat Ratilal Shah along with the owners of the property by executing tripartite agreement and subsequent notice issued by AMC resulted in Civil Suit No.2221 of 2007 having been filed and there is an order of status quo passed in the said suit. Secondly on the ground that Mr. Bharat Ratilal Shah is in possession of the disputed land and he was not made a party to the petition and the suit filed by Mr. Bharat Ratilal Shah was also pending. Thirdly on the ground that disputed questions of facts are involved which cannot be gone into in a petition filed under Article 226 of the Constitution of India. Hence this intra-court appeal.

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It is the contention of Mr. Mehul Sharad Shah, learned advocate appearing for the appellants that

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finding recorded by the learned Single Judge with regard to there being an order of status quo in operation was factually incorrect or erroneous since initial order of status quo passed in Civil Suit No.2221 of 2007 came to be vacated on 9.10.2009 and suit itself came to be dismissed for non-prosecution on 12.4.2010. He would also contend that there was no disputed question of fact involved since the land was acquired by AMC and final plot was allotted of which possession of the entire final plot was not handed over and as such a direction is required to be issued to the AMC. He would also submit that undisputedly, AMC had taken possession of part of the land of the appellants and in view of the same, the subject land and other abutting land in Original Plot No.65 and Final Plot No.97 was allotted to the appellants and as per mandate of Section 48A, 68 and 69 of the Act, it is the statutory duty of the AMC to hand over possession of the final plot. He would contend that suit filed by the appellant trust had been decreed and confirmed upto this Court which has not been considered

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by the learned Single Judge. He would also submit that suit filed by respondent No.2 had been dismissed and order of injunction was also dissolved and this aspect has not been considered in proper perspective by learned Single Judge. He would further contend that the learned Single Judge ought to have taken note of the fact that AMC though had issued notice to respondent No.2 to vacate the subject land and had sought police protection, and yet for reasons best known to AMC, the said proceedings had not been taken to its logical end and hence appropriate direction is required to be issued. He would also submit that it is the statutory obligation of the AMC to hand over possession of the final plot to the trust and despite there being no order of injunction or status quo operating against AMC, appellants could not have been denied possession of the subject land by AMC. He would further elaborate his submissions by contending that when the town planning scheme had been finalised, it would have the force of law and as such it was incumbent upon AMC to hand over final plot as per the

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town planning scheme by removing the encroachment if any order the land and possession ought to have been delivered to the appellants. On account of statutory duty cast upon AMC having not been discharged, a writ of mandamus would lie against AMC. Hence, he would contend that order of the learned Single Judge is liable to be set aside and prayer for appeal being allowed by granting the relief sought for in Special Civil Application No.19507 of 2017.

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Mr. Deep D. Vyas, learned advocate appearing for respondent No.1 would support the prayer sought for by the appellants.

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Mr. Hriday Buch, learned advocate appearing for Mr. Panam C. Soni for respondent No.2 would contend that there is no infirmity in the order passed by the learned Single Judge and he would submit that only remedy available to the appellants was to execute the decree and after having failed to execute the decree which they had obtained in Civil Suit No.3240 of 1972,

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Page 10 of 29

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they cannot seek possession of subject property through respondent No.1 to oust respondent No.2 from subject land, particularly when appellants have elected one of the remedies available to them viz. by filing a suit and obtaining a decree. He would also contend that respondent No.2 is the successor-in-interest of Mr. Khurshid Hussein Ismailji and the judgment and decree passed in Civil Suit No.3012 of 1972 would enure to the benefit of respondent No.2 inasmuch as said suit having been decreed and AMC having been restrained from enforcing from the notice by way of perpetual injunction which was then issued to the predecessor-in-title of respondent No.2 and as such now similar notice cannot be enforced against respondent No.2. He would also contend that appellants knowingfully well had filed a suit against the predecessor-in-title of respondent No.2 for relief of injunction and had obtained the decree and also knowingfully well that respondent No.2 is the successorin-interest is in possession of the subject property, yet did not implead him as a party to Special Civil Application

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No.19507 of 2017 and it is for this precise reason, learned Single Judge has rightly refused to exercise the extraordinary jurisdiction vested in it. He would submit that respondent No.2 was joined as a party in the present proceedings at the instance of this Court. He would submit that respondent No.2 is in settled position of the subject land and appellants had failed to execute the decree obtained by them and as such a right has accrued to respondent No.2 which cannot be truncated by using the office of respondent No.1. He would also submit that when the appellants have elected to avail a particular remedy viz. in the instant case by filing a civil suit and had obtained a decree, without executing the said decree, they cannot now invoke the extraordinary jurisdiction of this Court. He would also submit that a valuable right has accrued in favour of respondent No.2 and said right cannot be taken away. He would rely upon the following judgments in support of his submissions:

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(i) Judgment dated 28.12.2017 rendered in Letters Patent Appeal No.1052 of 2017;

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(ii) State of Rajasthan vs. Union of India and others [(2018) 12 SCC 83];

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(iii) Balwant Singh (Dead) vs. Jagdish Singh and others [(2010) 8 SCC 685].

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Having heard the learned advocates appearing for the parties and on perusal of the records, we are of the considered view that the following points would arise for reconsideration:

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(1) Whether the order of the learned Single Judge is liable to be set aside, modified or varied for any reason whatsoever?

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(2) Whether the prayer sought for by the appellants in Special Civil Application No.19507 of 2017 deserves to be granted?

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(3) What order?

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DISCUSSION AND FINDING ON POINT No. (1) AND (2):

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It is an undisputed fact that under the erstwhile Bombay Town Planning and Urban Development Act, AMC had framed a Town Planning Scheme No.8 and same was sanctioned by the State Government on 15.1.1966 which came into force from 1.3.1966. The appellant trust was holding immovable property bearing City Survey Nos.79 and 84 of Village: Dariyapur-Kazipur in Ahmedabad city, admeasuring 20570 square yards which was included in the final town planning scheme No.8 which was given Original Plot No.65 and Final Plot No.97. Appellants were allotted Final Plot No.97 as per Form B – Redistribution and Valuation State and Part Plans which covered the subject land, which was owned by Mr. Joitaram Patel and others, which came to be amalgamated with the land of the appellant trust and made part of Final Plot No.97. In other words, appellant trust was allotted 400 square yards of the land from Original Plot No.67 (owned by Mr. Joitaram Patel).

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Since it is the statutory obligation viz. under Sections 48A, 68 and 69 of the Act on the part of AMC to

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hand over possession of the final plot, appellant trust sought for possession of the said portion of the land which was in occupation of one Mr. Khurshid Hussein Ismailji. Hence, a notice came to be issued by AMC on 12.12.1969 against Mr. Khurshid Hussein Ismailji and similarly placed persons. Being aggrieved by the same, said Mr. Khurshid Hussein Ismailji filed Civil Suit No.3012 of 1972 challenging the notice issued under Section 54 of the Act and only on the ground of same being in violation of principles of natural justice, the defendant was injuncted from implementing or otherwise executing the said notice. The appeal filed by the AMC against the said judgment and decree in First Appeal No.88 of 1977 did not yield any result or in other words, appeal came to be dismissed vide oral common judgment dated 10.9.1997. Thus, judgment and decree passed in Civil Suit No.3240 of 1972 attained finality.

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On account of there being inaction on the part of AMC in not performing its statutory obligation, appellants filed Civil Suit No.3240 of 1972 against AMC and also

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others including Mr. Khurshid Hussein Ismailji seeking several reliefs amongst others including a decree to direct the defendants to vacate and deliver possession of the subject land. The said suit after contest came to be decreed by judgment and decree dated 23.2.1976.

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Respondent No.2 herein sought to assert possession of the subject land by virtue of an alleged deed of assignment dated 3.12.1993 executed by Mr. Khurshid Hussein Ismailji in his favour started asserting his claim and also contended that by virtue of same, he is in possession of the subject land. Hence, AMC issued notice on 9.5.2007 to respondent No.2 which was challenged by him by filing Civil Suit No.1899 of 2007. Said suit was withdrawn on 6.9.2007. However, another suit being Civil Suit No.2221 of 2007 came to be filed by respondent No.2 against AMC and on notice of motion (injunction application), an interim order of status quo came to be granted and subsequently suit came to be dismissed on 9.10.2009. This order apparently has attained finality. To enforce the notice dated 9.5.2007 and apprehending law

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and order situation, AMC sought for police bundobast. In the meanwhile, Civil Suit No.2221 of 2007 which had been dismissed was restored by order dated 6.4.2016 and same is said to be pending. On account of AMC not having acted in furtherance of the notice dated 9.5.2007, Special Civil Application came to be filed which has been disposed of by order dated 2.11.2017. The learned Single Judge (as then was) has opined in paragraph 4 that in the aforesaid civil suit i.e. 2221 of 2007 there is an order of status quo passed and it is in operation. However, the factual aspect is otherwise. Initially, said suit came to be dismissed on 12.4.2010 with costs and application for condonation of delay seeking restoration of the suit was allowed by condoning the delay on 14.8.2013 and subsequently, suit came to be restored on 6.4.2016. In the said suit an application for temporary injunction had been filed and same had been dismissed by the Trial Court after hearing the parties vide order dated 9.10.2009 whereunder it was observed by the trial Court as under:

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“4. To meet with the above submissions … … … said Khurshidben In such circumstances, the plaintiff is found bound by the decree in the said suit, and therefore, now without challenge of T.P. Scheme, the plaintiff’s mere challenge to the execution and implementation of the T.P. Scheme is found to be an action on the part of the present plaintiff to resist the legal procedure as contemplated under the Town Planning Act. Thus, I find prima facie case of the defendant and not of the plaintiff. Thus, from … … … I pass the following order.”

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The abovesaid finding has attained finality. The plaintiff in the said suit, i.e. Civil Suit No.2221 of 2007 is the respondent No.2 herein. Hence, he cannot shy away from the said order which is operating against him.

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In the said suit, the plaintiff has relied upon a document which was marked as 4/14 to contend that he had purchased the tenancy rights from the tenant and the date of purchase as reflected from the said document is 3.12.1993 and in the instant proceedings, in the reply affidavit filed at paragraph 3 of the said affidavit dated

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17.2.2018, respondent No.2 has contended that he entered into an agreement with Mr. Khurshid Hussein Ismailji on 3.12.1993. Thus, respondent No.2 is relying upon a document dated 3.12.1993 which is an unregistered document. Section 17(i)(d) of the Registration Act mandates registration of a document under which a right over property, the value of which is Rs.100 and upwards is sought to be created would be compulsorily registerable as held by Hon’ble Apex Court in the matter of United Bank of India vs. Lakhram Sonaram & Co. [AIR 1965 SC 1591]. The document relied upon by respondent No.2 being unregistered document, same cannot be looked into even for collateral purposes as contemplated under proviso to Section 49 of The Registration Act, 1908. As such, on this short ground itself, plea of respondent No.2 ought to fail and it is liable to be rejected.

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In addition to this, from the record, it has been revealed that main Town Planning Scheme which has already become final has not been challenged anywhere by respondent No.2

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herein. What was challenged was a mere consequential step in the form of notice issued under Section 68 of the Gujarat Town Planning & Urban Development Act, 1976 read with Rule 33 of the Rules and as such in view of the proposition of law laid down in the matter of Kanjibhai Dahyabhai Malsattar vs. State of Gujarat [2005 (2) GLH 515], stand of respondent No.2 cannot be accepted. It has been categorically held therein that at every stage of draft Town Planning Scheme as well as preliminary Town Planning Scheme, suggestions and objections are invited by giving public notices in local newspapers and thereafter, scheme would be sanctioned by the State authority and as such, non-service of individual notice is of no consequence. It has been further propounded that if main Town Planning Scheme is not under challenge then issuance of notice under Section 68 read with Rule 33 cannot be said to be illegal since the same would be in consonance with the purpose of implementation of the Town Planning Scheme. Relevant observations contained in paragraph 11.2 of the said judgment reads:

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“ 11.2 It is required to be noted that as such in the present Special Civil Applications, the petitioners

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have not challenged the Town Planning Scheme which has become final. What is challenged is the notices issued under Section 68 of the Act read with Rule 33 of the Rules by which the petitioners are called upon to hand over possession of the land which is going under six metres wide road under the finalised Town Planning Scheme. Once the Town Planning Scheme has become final and the land is required for the purpose of six metres wide road under the finalised Town Planning Scheme in absence of challenge to the town planning scheme, the consequences are inevitable. The persons who are in occupation of the land are required to hand over peaceful and vacant possession of the land which is needed for the purpose of implementation of the Town Planning Scheme and the only thing which was required to be done was service of notice as contemplated under Section 68 of the Act read with Rule 33, and such notices are served upon the petitioners. As the notices are in consequence of finalisation of the Town Planning Scheme, the petitioners have no right to continue to be in possession and occupation of the land in question which is required for the purpose of implementation of the Town Planning Scheme, which is not challenged by the petitioners. If for the purpose of implementation of the Town Planning Scheme the

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notices are issued upon the petitioners as contemplated under Section 68 read with Rule 33 and the petitioners are called upon to hand over peaceful and vacant possession of the land in question, it cannot be said that the action of the respondents is in any way illegal and/or contrary to the provisions of the Act.”

¶108

Yet in another decision based upon settled proposition of law reported in 2016(0) AIJEL HC-234988, this has observed that Section 68 empowers the authority to summarily evict any person continuing to occupy the land which he is not otherwise entitled and as such the appropriate authority is under an obligation to perform its duty in accordance with law to implement the scheme and thereby Corporation was directed to implement the scheme as expeditiously as possible. Conjoint reading of the aforesaid proposition would make it clear that stand taken by respondent No.2 is not possible to be accepted.

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The learned Single Judge in the case of Kanjibhai Dahyabhai Malsattar vs. State of Gujarat [2005 (2) GLH 515] after referring to the case of Jaswantsingh

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Mathurasingh vs. Ahmedabad Municipal Corporation [1992 Supplementary (1) SCC 5] has held to the following effect:

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“ 11.1 An identical question, whether the persons affected by the Town Planning Scheme are required to be served with special or individual notice as contemplated under Section 52 of the Act read with Rule 26(2) of the Rules or not and non-service of special or individual notice to the person affected by the Town Planning Scheme would vitiate the Town Planning Scheme or not, came to be considered by the Division Bench of this Court in the case of Chandravadan Chunilal Shah (Supra), and after considering the Judgment of the learned Single Judge of this Court [Coram: N.N. Mathur, J., as he then was] in the decision of Shilpa Park Housing Society, Surat 1996(2) GLR 707 in which the learned Single Judge relying upon the unreported judgment of the Division Bench of this Court rendered in Special Civil Application No. 1608 of 1979 on 20th April 1992, has held that considering the provisions of Section 52 of the Act read with Rule 26, what is required under Section 52 is

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giving of a notice to the person affected by the scheme in the form and manner prescribed and the form and the manner for giving notice under Section 52 of the Act is provided in Rule 26 of the Rules of 1979 and Rule 26 of the Rules provides that the notice shall be published in the official gazette and in one or more Gujarati newspaper circulating within the area of the appropriate authority and shall be pasted in a prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer. The Rule further provides that notice shall be in the Form 'H' and considering the aforesaid provision it is held that by not serving a special or individual notice upon the person affected by the Town Planning Scheme the scheme is not vitiated. So far as the reliance placed upon the judgment of the Hon'ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra) is concerned, the same will not be applicable to the facts of the present case, as the said decision was rendered considering the provisions of the Bombay Town Planning Act and the Rules and the present case is governed by the provisions of the Gujarat Town Planning Act and the Rules thereof, and the provisions

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under both the Statutes are different. Another Division Bench of this Court has also, while considering the decision of the Hon'ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra), while deciding the Special Civil Application No. 1608 of 1979 and considering the amendment in Bombay Town Planning Rules, more particularly amended Rule 21 which is para materia to the provisions of the Gujarat Town Planning Act and the Rules, i.e., Rule 26, held that the judgment of the Hon'ble Supreme Court in the case of Jaswantsingh Mathurasingh (supra) will not be applicable and individual/special notices are not required to be issued. Under the circumstances, the submission and contention on behalf of the petitioners to the effect that non-service of special or individual notices vitiated the scheme has no substance and the same is required to be rejected.”

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Once scheme has become final and same having not been challenged, respondent No.2 cannot be heard to contend that respondent No.1 would not be in a position to enforce the notice for vacating the land as an occupier as he is considered to be an encroacher. In fact under

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Section 68 of the Act, appropriate authority has been authorised to summarily evict a person who is in occupation of the land and such of those persons who resist the eviction, the authority is empowered to evict from the disputed land under Rule 33(c) and there is an embargo placed under Section 105 that no suit or prosecution would lie against the State Government or appropriate authority or any public servant taken against the persons in occupation of the land who were sought to be summarily evicted. The decision of the Town Planning Officer having attained finality under Sections 52 and 53 and scheme having been published in Form No.H having attained finality, what remained is only its implementation. In fact, the finding recorded in the earlier proceedings and especially finding recorded in Civil Suit No.2221 of 2007 by order dated 19.10.2007 by the City Civil Court that procedure prescribed under Section 66 read with Rule 33 of the Act having been followed by issuing notice, itself would suffice for rejecting the contention raised by Mr. Hriday Buch,

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learned advocate appearing for respondent No.2. In fact, the judgment and decree passed in Civil Suit No.3012 of 1972 is a judgment in personam and not a judgment in rem . In other words, the said judgment was in favour of Mr. Khurshid Hussein Ismailji and it would not enure to the benefit of respondent No.2. AMC had been injuncted by the Civil Court from enforcing the notice issued to Mr. Khurshid Hussein Ismailji and it does not prohibit or prevent AMC issuing further notice to an encroacher. When the document dated 3.12.1993 relied upon by respondent No.2 to claim possession itself cannot be looked into, question of further probing as to whether notice is to be issued of respondent No.2 by AMC or AMC should have adjudicated the said notice would not arise. We desist from embarking upon conducting any inquiry in this regard, inasmuch as respondent No.2 has already filed Civil Suit No.2221 of 2007 before the Civil Court challenging the subsequent notice and it is for him to prosecute the said suit and we are not expressing any opinion in that regard and for the limited purpose of this

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appeal, our observations are being confined. Admittedly, no order of injunction or status quo has been passed in Civil Suit No.2221 of 2007 as on date. Hence, we are of the considered view that statutory authorities are right and justified in proceeding to issue notice to respondent No.2 and appellants who have been allotted the final plot are required to deliver or handed over vacant possession of the final plot allotted to them under the final scheme and as such we are of the considered view that finding recorded by the learned Single Judge being contrary to records and factual aspects cannot be sustained. Hence, we are of the view that learned Single Judge committed an error in not entertaining the Special Civil Application.

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For the reasons aforestated, we answer Point Nos. (1) and (2) in favour of the appellants and proceed to pass the following

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O R D E R

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(i) Letters Patent Appeal No.1958 of 2017 is allowed.

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¶134

C/LPA/1958/2017 JUDGMENT DATED: 15/11/2022

¶135

(ii) The order dated 2.11.2017 passed in Special Civil Application No.19507 of 2017 is set aside.

¶136

(iii) Special Civil Application No.19507 of 2017 is hereby allowed and a writ of mandamus is issued to respondent No.1 to hand over the possession of the entire land of Plot No.97 including the land in possession of respondent No.2 to the appellants by removing the encroachment viz. the subject land forthwith through police bundobast if necessary and at any rate within an outer limit of two weeks from today since earned advocate appearing for respondent No.2 submits that an undertaking to vacate would be filed before this Court by tomorrow, i.e. on 16.11.2022.

¶137

(ARAVIND KUMAR,CJ)

¶138

(ASHUTOSH J. SHASTRI, J)

¶139

Bharat

¶140

Page 29 of 29

Sheth Jamnabhai Baghubhai v. Ahmedabad Municipal Corporation

Case brief

What is this about?

What did the court decide?

Sheth Jamnabhai Baghubhai v. Ahmedabad Municipal Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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