Mahendra Dhanraj Manchhani & 61S vs State Of Gujarat & 2

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13644 of 2011 For Approval and Signature:

HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

========================================================= MAHENDRA DHANRAJ MANCHHANI & 61 - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :

MS TRUSHA K PATEL for Petitioner(s) : 1 - 62.

MR PRAKASH JANI, GOVERNMENT PLEADER with MS NISHA M THAKORE, ASSTT.

GOVERNMENT PLEADER for Respondent(s) : 1-3 =========================================================

CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI

Date : 25/01/2012 ORAL JUDGMENT

1. Rule. Mr.Prakash Jani, learned Government Pleader with Ms.Nisha M.Thakore, learned Assistant Government Pleader, waives service of notice of Rule for the respondents. On the facts and in the circumstances of the case, and with the consent of the learned counsel for the respective parties, the petition is being heard and finally decided.

2. The petitioners, 62 in number, have preferred this petition under Article 226 of the Constitution of India, with a prayer to issue an appropriate Writ, order or direction, to quash and set aside order dated 30.10.2010, passed by the Deputy Secretary, Revenue Department, and the consequential order dated 28.12.2010, passed by the District Collector, Ahmedabad, and to direct the respondent­authorities to allot plots admeasuring 25 square metres each to the petitioners, as per Section 23 of the Urban Land (Ceiling and Regulation) Act, 1976 (“the Act” for short).

3. The case appears to have a chequered history, therefore, it would be appropriate to notice a few relevant facts. The petitioners belong to weaker section of the society and would answer to the description of “urban poor”. Being in dire need of residential houses, and in view of the prevailing policy of the State Government formulated as per the provisions of Section 23 of the Act, the petitioners applied to the Competent Authority for allotment of plots as per the Scheme of the Act, on different dates. Lands bearing Survey Nos.154­A and 154­B of Naroda area admeasuring 2040.62 square metres, were declared surplus and the State Government took possession of the same. Small plots, admeasuring 25 square metres, were demarcated and a decision was taken by the State Government to allot plots to the urban poor. It is the case of the petitioners that at the relevant point of time, the petitioners had deposited an amount of Rs.250/­ towards occupancy price, pursuant to which they were allotted plots of land, by order dated 25.10.1993. Paper possession of the said plots was handed over to them, though actual physical possession was not given. As possession had not been handed over to the petitioners and others, a petition, being Special Civil Application No.452 of 2001 was preferred by “Jay Shree Mahabali Mitra Mandal Trust”, in a representative capacity. During the pendency of the said petition, Special Civil Applications Nos.8670/2001 and 5963/2002 were preferred by the original owner of the land, challenging the proceedings under the Act, whereby the land allotted to the petitioners was declared as “excess”. The petition filed by the Trust was heard along with the two petitions filed by the original land owner and, vide common judgment dated 29.03.2007, Special Civil Application No.8670 of 2001 was allowed whereas Special Civil Application No.5963 of 2002 was dismissed. It was declared that the order dated 25.10.1993, allotting the land in favour of the petitioners would not continue in operation insofar as the land bearing Survey No.154­A and 154­B of village Naroda is concerned. However, the State Government was directed to allot other land to the petitioners as expeditiously as possible and practicable, sympathetically, and in accordance with law. This order has been accepted by the State Government, as stated in communication dated 04.08.2008, annexed at running page­46 to the petition. As no allotment of land came to be made, the petitioners made several representations to the respondent­authorities. Ultimately, another petition, being Special Civil Application No.1938 of 2008 came to be filed, that was disposed of by order dated 04.08.2008, directing the Competent Authority to examine all aspects of the matter and after granting personal hearing, if desired by the petitioners, to submit his Report to the Government as expeditiously as possible and preferably within twelve weeks from the date of receipt of representation made to him. Further, the State Government was directed to take the final decision preferably within four months thereafter, and the entire exercise was directed to be completed within nine months from the date of passing of the order. The order dated 04.08.2008 has not been challenged in any Court of law. As no order was passed by the Competent Authority even after completion of nine months, as directed by this Court, the Trust filed a Contempt Petition, being Miscellaneous Civil Application No.3332 of 2009. In the said proceedings, Mr.A.Bhattacharya, I.A.S., Commissioner of Land Reforms and Ex­officio Principal Secretary, Revenue Department, filed an affidavit on 20.03.2010, stating that the directions given by this Court in order dated 04.08.2008 would be complied with within a period of fifteen days from the date of filing of the affidavit. It was further stated that a final decision has been taken by the State Government at the highest level on 24.02.2010, for allotting plots of land admeasuring 25 square metres each, as per policy laid down in Government Resolution dated 30.05.1987. The Court was assured that necessary consequential formalities for the above­said purpose would be completed as expeditiously as possible, but not later than four months. In view of the said affidavit, the Contempt Petition was not pressed by the applicants and was ultimately disposed of by order dated 23.03.2010. Thereafter, it appears that vide communication dated 22.03.2010, the State Government had directed the Collector to send a Report. On 28.06.2010, the Collector sent the Report to the State Government, on the basis of verification carried out by the Mamlatdar, City. On 30.10.2010, the Deputy Secretary, Revenue Department, issued an order rejecting the cases of 146 persons (including the petitioners), for allotment of plots under the Scheme of the Government, based upon the opinion of the Collector. This is one of the orders impugned in the petition. On the basis of this order, the Collector passed a consequential order dated 28.12.2010, holding that 146 persons, including the petitioners, cannot be allotted plots of land as they are not found to be eligible. Aggrieved thereby, the petitioners have approached this Court by filing the present petitions.

4. An affidavit­in­reply has been filed by the State Government opposing the prayers made in the petition on the ground that the petitioners do not have any fundamental right for allotment of the land. The allotment of plots took place in the year 1993 and many changes may have occurred during the interregnum.

5. Ms.Trusha K.Patel, learned advocate for the petitioners, has submitted that the petitioners had been found to be eligible for allotment of land as on 25.10.1993, and it was only on the basis of their eligibility that paper possession was granted to them. It is submitted that the Court has specifically directed the respondent­ authorities vide order dated 29.03.2007, passed in Special Civil Application No.8670 of 2001 and cognate matters, that the State Government shall allot other land to the petitioners as expeditiously as possible, taking a sympathetic view. The learned advocate for the petitioners further submits that the Contempt Petition filed by the Trust in the representative capacity was not pressed only due to the assurance given to the Court by the deponent of the affidavit dated 20.03.2010, that its orders would be complied with. That the Report of the Collector is based on the verification conducted by the City Mamlatdar, who has not issued notices to the petitioners so as to enable them to supply requisite documents in support of their cases.

Without issuance of any public notice, the cases of the petitioners have been rejected on grounds, such as, they are not found at the given addresses or that their incomes are above the prescribed limit. It is contended that the petitioners were never associated with the inquiry conducted by the City Mamlatdar, therefore, it is not understood on what basis such conclusions have been drawn. Besides, the petitioners do not own houses of their own and cannot be expected to stay at one place since the year 1993. That the petitioners are residents of Ahmedabad, as can be seen from the addresses given in the cause­title of the petition, therefore, the order of the State Government and the consequential order of the Collector, deserve to be quashed and set aside.

6. On 18.01.2012, after hearing Ms.Nisha M.Thakore, learned Assistant Government Pleader, this Court had directed the Collector, Ahmedabad, to be present in the Court on the next date of hearing. When the matter came up on 24.01.2012, Mr.Vijay Nehra, District Collector, Ahmedabad, and Mr.D.D.Kapadia, Competent Authority and Deputy Collector (ULC), were present in the Court and submitted that a fresh process of verification regarding the petitioners would be undertaken, in the event that the petitioners furnish their current and correct addresses. It was further stated that after granting an opportunity of hearing, appropriate orders regarding allotment of plots would be passed, keeping in mind the eligibility of the petitioners as it stood in the year 1993, and the earlier directions of this Court. An Additional Affidavit has been filed by Mr.D.D.Kapadia, Competent Authority and Deputy Collector (ULC), on 25.01.2012, wherein it is stated that, insofar as the 62 petitioners of this petition are concerned, intimation shall be given to all concerned petitioners regarding the hearing and a de­novo inquiry would be conducted for verification of the documents regarding eligibility of the petitioners for allotment of plots, in accordance with law and the policy of the State Government, laid down in Government Resolution dated 30.05.1987. Thereafter, a proposal would be sent to the State Government for necessary and appropriate decision.

7. It is submitted by Ms.Trusha K.Patel, learned advocate for the petitioners that during the course of hearing before this Court on 24.01.2012, it was accepted by Mr.Vijay Nehra, District Collector, Ahmedabad, and Mr.D.D.Kapadia, Competent Authority and Deputy Collector (ULC), that the eligibility criteria of the petitioners would be looked into as it stood in the year 1993, when the allotment of plots had been made in their favour. It is pointed out by the learned advocate for the petitioners that this aspect, though stated before the Court, has not been incorporated in the Additional Affidavit, filed today.

8. Mr.Prakash K. Jani, learned Government Pleader, upon instructions from the Competent Authority and Deputy Collector (ULC), states that the eligibility criteria of the petitioners, as it stood in the year 1993, would be taken into consideration, as the allotment in their favour had been made in the year 1993.

9. In view of the fact that the Competent Authority has stated in the Additional Affidavit that a de­ novo inquiry would be conducted for verification of the documents regarding eligibility of the petitioners for allotment of plots, and as there is a consensus between the parties, the following order is passed:

10. The concerned authority shall issue individual intimations to all the petitioners regarding personal hearing, on the addresses to be found at pages 62 to 81 (column No.3), as stated by the petitioners in the further Affidavit filed on their behalf on 24.01.2012. Thereafter, fresh verification of the documents shall be made in accordance with law, to verify the eligibility of the petitioners as it stood in the year 1993, when the original allotments in their favour were made. After undertaking this exercise, a proposal shall be made by the Competent Authority to the State Government for necessary decision. The State Government shall then take a decision upon the proposal, sympathetically and in proper perspective, keeping in mind the aspect that the original allotment was made in favour of the petitioners in the year 1993, and the policy of the State Government formulated on the basis of Section 23 of the Act. The entire exercise be completed within a period of six months from the date of receipt of a copy of this order by the Collector.

11. In view of the above, order dated 30.10.2010, passed by the Deputy Secretary, Revenue Department, and the consequential order dated 28.12.2010, passed by the District Collector, Ahmedabad, are quashed and set aside, qua the petitioners only. The petition is partly­allowed. Rule is made absolute, to the above extent. There shall be no orders as to costs.

(Smt. Abhilasha Kumari, J.) (sunil)