In present petition, the petitioner has prayed for below mentioned reliefs:-
"11(B) Your Lordships be pleased to issue a writ of certiorari or writ of mandamus or in nature of mandamus or any other writ, orders or direction against the respondents and be pleased to direct them not to disturb the peaceful possession of the petitioner with respect to Plot No.12 admeasuring 4852 sq. mtrs. in GIDC Estate Balisana and not to give way to the respondent No.4 through to the said Plot No.12 of the petitioner and also not to give way through the internal road of GIDC from the survey No.431/1 belonging to the respondent No.4;
(B-1) Be pleased to direct Resp.No.5 to produce relevant papers of loan of Resp.No.4.
(C) Pending admission, hearing and final dispoal of this petition, Your Lordships may be pleased to grant interim relief to the petitioner and be pleased to restrain the respondents from taking any further action with respect to giving the way to the respondent no.4 from his survey No.431/1,through the Plot No.12 of the petitioner and through the internal road of GIDC Estate, Balisana, and not to disturb the petitioner in any manner regarding the subject matter of this petition;"
2. In the order dated 14.2.2012, the Court observed that, the Court was inclined to pass order of status-quo to be maintained by all concerned parties, including the petitioner.
2.1 So as to avoid repetition of the aspects, which the Court took into consideration while passing the order dated 14.2.2012 and instead of narrating the said aspects and facts again, it is considered appropriate to quote the said order since this Court, at this stage also, in the facts of the case, considers it appropriate to grant interim relief and to continue the directions requiring the parties to maintain status-quo. The relevant paragraphs of the said order dated 14.2.2012 read thus:-
"2. Notice pending admission returnable on 28.02.2012. The court at this stage is inclined to pass an order of status-quo as on date to be maintained by all concerned including the present petitioner. This interim relief, which is in form of status-quo, which has been granted by this order, is not the only relief, which is going to be granted finally, the court would therefore, grant further relief including ordering mandatory injunction and prohibitory order against the road to be allotted to respondent no.4 after giving an opportunity to the GIDC, which is the authority, who has passed the decision of allowing way to respondent no.4 running through plot of present petitioner. The justification in my view for granting status-quo as on date is as under.
3. The petitioner has unequivocally contended that respondent no.4 did not have any right of way enuring in his favour from passing through plot no.12, which has been given to petitioner's predecessor and now the petitioner is a valid transferee of the said plot. The petitioner has invited this court's attention to the sketch and map demarcating the location. The petitioner has also invited this court's attention that respondent no. 4 had surrendered the plot no. 12 to GIDC in the year 1976, to be more precisely, on 25.6.1976, after having surrendered plot no. 12, he could not have claimed any right over the plot or part of the plot. The respondent no. 4, though surrendered the plot, which came to be allocated to the predecessor of the petitioner in the year 1995 and since 1995, the plot i.e. plot no. 12 is in complete possession of the petitioner and his predecessor. The facility of passing through the plot no. 12, if at all was available, it was available on account of permissible usage without touching any easement right of way whatsoever in respondent no. 2, though the petitioner has not accepted the claim of respondent no.4 for any pass over the right by way of passage of time but through road in question. The respondent no. 4 purchased the plot bearing survey No. 431/1 in the year 1974 and therefore, he wanted to have right of way through this plot and hence he moved civil proceedings, wherein, as per the say of respondent's advocate, the respondent no. 4 filed Regular Civil Suit No. 43 of 2006 specifically praying that let there be a right of way being carved out, out of plot no. 12, which is in exclusive possession of petitioner and/or his predecessor. This suit was coupled with Exh. 5 application, seeking similar relief by way of interim relief, which came to be rejected by the competent civil court after examining the aspect at that relevant time. Exh. 5 application came to be rejected on 13.11.2006. This order of Civil Court below Exh.5 was assailed by way of a Civil Misc. Appeal No. 36 of 2006 by respondent no. 4, wherein the District Court vide order dated 27.11.2008 rejected the same. Having gone rejected two proceedings, respondent no. 4 chose to prefer Special Civil Application No. 3884 of 2008 before this Court, wherein, this Court (Coram: Anant S. Dave, J.) passed the following order:
At the outset, learned Advocates for the parties submit that this Writ Petition can be disposed of in view of the affidavit-in-reply dated 29.06.2009 filed by the Assistant Manager, Gujarat Industrial Development Corporation (GIDC).
With regard to the subject matter of dispute involving this petition, in Paragraph 2 of the affidavit-in-reply, the Assistant Manager of GIDC has stated as under :-
"I state that I am filing the present affidavit for the limited purpose for bringing on record certain facts subsequent to the passing of the impugned order. I state that the petitioner here had made an application dated 25.02.2009 before the Grievance Redressal Cell of the Gujarat Industrial Development Corporation at Mehsana regarding right of way through Plot No.12. I state that on the basis of the said complaint, the Divisional Manager called for the opinion of the Deputy Executive Engineer and Surveyor in respect of the grievance of the petitioner. I state that the joint report of the Surveyor and the Deputy Executive Engineer was submitted to the Executive Engineer on 29.04.2009, wherein it was reported that in respect of the land bearing Survey No.431/1/B to obtain basic amenities, the present petitioner had paid requisite development charges of Rs.3,500/- on 20.03.1975. I state that in view thereof the petitioner was provided access to the basic amenities of the estate. Since the Plot No.12 was also in possession of the Petitioner, a separate road was not craved out at the relevant point of time. I state that they have recommended for providing access as prayed for by the petitioner. I state that the report was placed before the Executive Engineer and Executive Engineer vide letter dated 22.06.2009 has favaroubaly recommended the Divisional Manager for grant of access. I state that having regard to the pendency of the proceedings before this Hon'ble Court, for final decision has not been taken by the Divisional Manager in this regard.
A copy of the application dated 25.02.2009 is annexed herewith and marked as Annexure R-1/1.
A copy of the report dated 29.04.2009 is annexed herewith and marked as Annexure R-1/2.
A copy of the communication dated 22.06.2009 of the Executive Engineer is annexed herewith and marked as Annexure R-1/3."
Mr.
Mitul Shelat learned Advocate for the respondent - Corporation submitted that due to the pendency of the proceedings before this Court, no final decision is taken by the Divisional Manager.
In view of what is stated in the affidavit-in-reply, I am inclined to dispose of this petition with a direction to the Divisional Manager, GIDC to decide finally about providing access to the petitioner, within eight weeks from today. That it will be open for respondent No.4 to offer his suggestions with regard to providing access to the petitioner.
The petition stands disposed of in view of what is stated in the affidavit-in-reply and statement made by the learned Counsel for the respondent that final decision will be taken pursuant to the report submitted by the Surveyor and the Deputy Executive Engineer. It will be open for the petitioner to take appropriate remedial measures in case access is not provided by the Divisional Manager, including revival of the petition. Notice discharged with no order as to costs."
Pursuant to this order, the petitioner put up his strong objection qua any attempt on the part of respondent no. 2 GIDC in giving way to respondent no. 4. Unfortunately, as stated in the memo of petition by learned advocate for petitioner, no decision was communicated to the petitioner and it was only informed that it was decided in its meeting to give way, out of plot no. 12, which is in exclusive possession of the petitioner through his predecessor, in favour of respondent no. 4. Hence this petition.
4. Shri Patel, learned advocate appearing for the petitioner, under instructions of petitioner, who is present in the court stated that plot in question is validly transferred in the name of the petitioner and therefore he has locus to file this petition. This statement was made apropos the query of the court on the contention made by respondent no.4 in affidavit-in-reply regarding locus of present petitioner, which is tendered today and which is ordered to be taken on record.
5. Learned advocate for respondent no. 4 contended that the court's order passed in Special Civil Application No. 3884 of 2008 was an order after hearing the present petitioner through advocate and having accepted that order, it can be stated that petitioner gave up his challenge and accepted the order and abide by the order, that may be passed by the GIDC.
6. This court is unable to accept the submission of learned advocate appearing for the respondent no. 4, as the plain reading of the order and the operative part unequivocally go to show that decision was to be rendered and it was never a decision ordered to be rendered in favour of respondent no. 4. It can never be. Therefore, aggrieved party always had a right to challenge the same in appropriate forum. Therefore, this submission on the part of learned advocate appearing for respondent no. 4 is bereft of merits, deserves outright rejection, and it is being rejected.
7. The court is prima-facie satisfied that the GIDC could not have acted dehors the provisions of law. The plot in question is given to predecessor of the petitioner on 99 years lease and therefore, control of GIDC over the plot for carving out way is depended upon the GIDC's right that may have been reserved by the GIDC, therefore, resolution passed in favour of respondent no. 4 or decision granting way out of plot is especially required to be addressed on this issue. This court is of the considered view that when GIDC had recovered the plot price at relevant time from petitioner and/or his predecessor and plot is given for 99 years on lease, according to Transfer of property Act and rights created in petitioner, could not have been likely to be brushed aside by them and GIDC could not have ignored the very fact that suit itself is pending against the GIDC and the present petitioner, wherein, the respondent no. 4 has failed in obtaining interim relief till the District Court. Therefore, these are the factors, prima-facie weighed against them in passing any order in favour of respondent no. 4 and therefore, order of status-quo is ordered and all the parties are directed to maintain status-quo including petitioner till the returnable date. Direct service permitted."
3. After 28.2.2012, the petition has been adjourned from time to time at the request of either party.
3.1 In the interregnum, affidavits, rejoinder affidavits and counter affidavits have been filed by the parties. On different occasions, the parties have been heard and on 31.8.2012, the Court heard learned counsel for the respective parties at length. Mr. Patel, learned advocate for the petitioner, had concluded his submissions, however, instead of passing order on said date the proceedings were adjourned to today so as to allow some time to the petitioner and respondent No.4 to arrive at amicable resolution of dispute.
4. Today, Mr. Patel, learned advocate for the petitioner, has submitted that the respondent No.4 has not given any response and/or has not approached for any discussion and there does not appear to be any possibility that any amicable resolution can be arrived at between the parties.
5. In present petition, the dispute relates to parcel of land which is described as Plot No.12 situate in GIDC Estate, Mehsana.
5.1 Since 2008, the petitioner has been allotted the said plot No.12, GIDC Estate, Mehsana on permanent lease for 99 years.
5.2 It appears that the petitioner has alleged that so as to accommodate the request of respondent No.4, the respondent corporation has proposed to allow right of way to the said respondent No.4 from and through petitioner's plot No.12 and to restructure the plot no.12 for the said purpose.
The petitioner has opposed the said proposal of respondent corporation and has raised various allegations and diverse contentions against the proposed action of the respondent corporation. The petitioner would claim that the corporation cannot arbitrarily and unilaterally reduce his plot to provide way to anyone.
6. Mr.
Patel, learned advocate for the petitioner, has made reference of the decision by the District Court, Patan, the terms of lease under which the plot in question has been allotted to the petitioner and has also mentioned the fact that the respondent No.4 had himself, consciously and being aware of all consequences, voluntarily surrendered the said plot No.12 (after having been allotted the said plot), back to the respondent corporation and thereafter, in 2008 the said plot came to be allotted to the petitioner.
On the said ground, the petitioner has claimed that now, the respondent No.4 for his personal benefit, is insisting that a road may be carved out through and from the said plot No.12, which is allotted to the petitioner on permanent lease basis for 99 years since 2008.
In such background, abovementioned reliefs have been prayed for by the petitioner.
7. The respondent No.4 has, by filing affidavit and additional/further affidavit, placed on record the details of allotment of the plot and also various discussions allegedly held between the respondent corporation and the respondent No.4. It is alleged by the respondent No.4 that there was an understanding between him and the respondent corporation that appropriate action will be taken by the respondent corporation to provide road for access to the land of respondent No.4, i.e. land bearing S.No.431/1. The respondent No.4 has insisted that there is nothing illegal or arbitrary in the decision of the respondent corporation in carving out a road as proposed by the respondent corporation, through and from the said plot No.12.
8. So far as respondent corporation is concerned, affidavit is filed wherein the respondent corporation has tried to justify its action in light of the alleged agreement said to have been arrived at between the respondent corporation and the said respondent No.4.
9. It is not in dispute that the petitioner has never been part of the alleged discussion or agreement between the respondent No.4 and the respondent corporation.
It is also not in dispute that the said plot No.12 has been allotted to the petitioner by way of permanent lease for 99 years since 2008.
It is also not in dispute that consciously, voluntarily and being aware of all consequences, the respondent No.4 had, on its own motion and voluntarily returned the said plot to the respondent corporation.
It is also not in dispute that if the respondent corporation is permitted to carve out a road, and that too from the land allotted to the petitioner, then, the respondent No.4 would be the direct beneficiary.
In the facts of the case, it, prima facie, appears that the proposal-decision of respondent corporation is arbitrary and unilateral and unjust. The decision-proposal of the respondent corporation will have effect of favouring the respondent No.4 who, as mentioned above, had voluntarily returned the plot in question and now, when the said plot is allotted to the petitioner, the respondent No.4 has approached the respondent corporation demanding that a road may be carved out from and through the said plot No.12 which is allotted to the petitioner. The respondent corporation seems to have accepted such demand of respondent No.4. Thus, on overall consideration of relevant aspects, the impugned proposal-decision of respondent corporation deserves to be examined in detail. It also appears, prima facie, that the decision is not in consonance with the terms of licence-lease.
10. Having regard to the relevant facts and circumstances and proposed action on the part of the respondent corporation and also the reasons recorded by the Court in the order dated 14.2.2012, the issues involved in and raised in present petition requires consideration.
It is also noticed that ad-interim relief in nature of direction to parties to maintain status-quo is in operation since 14.2.2012.
In that view of the matter, following order is passed:-
A. RULE, returnable on 1.4.2013.
B. By way of interim relief, ad-interim relief, which has been granted on 14.2.2012 and in operation until now, is confirmed and the said relief will continue until final hearing of present petition or any other or further order is passed.
C. Thus, all parties to the petition shall maintain status-quo as on 14.2.2012, until final hearing of present petition or any other or further order is passed.
10.1 At this stage, Mr. Dave, learned advocate for the respondent corporation has submitted that the petitioner should comply with the terms and conditions of the lease agreement and he should not take disadvantage of the order of interim relief.
It is needless to clarify, however, since learned advocate for the respondent corporation has so requested, it is clarified that the order of interim relief does not allow any party to commit breach of the lease agreement entered into between the petitioner and the respondent corporation and the concerned parties shall abide by all terms and conditions of the said lease.
Mr.
Patel, learned advocate for the petitioner, shall see to it that the petitioner will comply with the terms and conditions of the agreement.
(K.M.Thaker, J.) kdc