- (1.) By way of this petition under Article 226 of the Constitution of India, the petitioner " society has prayed for an appropriate writ, direction or order quashing and setting aside the Stay Order No. Jamin/Vashi/1488 of 2005 dated 15th April, 2005, Annexture " I to the petition. The case of the petitioners in the petition is as under :- That the petitioner No.1 " Modinagar Co-operative Housing Society Limited purchased various pieces or parcels of land bearing Survey Nos. 277/3, 203/1+2, 200/1+2+3, 282/3, 280, 281, 282/1+2, 278/2, 277/1+2, 278/1 and 279 of Village Sola, Taluka Daskroi, District Ahmedabad. One another Society i.e. Balkrishna Co-operative Housing Society Limited, the respondent No.4 herein, purchased the land bearing Survey Nos. 302, 303, 304/1, 313/2, 313/3, 294/2, 298, 299/1+2+3 and others of Village Ghatlodia and one Shahi Property Developers Private Limited, the respondent No.5 herein, purchased the land bearing Survey Nos. 136/1, 137/2, 138/1, 138/2 and 141/1 of Village Ghatlodia, Taluka City, District Ahmedabad. The Ahmedabad Urban Development Authority (hereinafter referred to as "the AUDA") prepared a Draft TP Scheme in respect of revenue villages of Ghatlodia-Sola-Chandlodia named as TP Scheme No. 28 (Ghatlodia-Sola-Chandlodia) and submitted the same under Section 48(1) of the Gujarat Town Planning & Urban Development Act; 1976 (hereinafter referred to as "the Act"). That against the aforesaid survey numbers, under the Draft TP Scheme, Final Plot No. 70 was allotted to the petitioners and the respondent Nos.4 and 5 and other persons and in lieu of total lands admeasuring 1,50,910. sq. mts. of land, it is proposed to allot Final Plot No. 70 admeasuring 75,455 sq. mts. of the land and the remaining land has gone under compulsory deduction for the TP Scheme. It appears from the record that Final Plot No. 70 is consisting of various Survey Numbers i.e. Survey Nos. 199 (part), 200, 203, 276, 277/1+2, 278, 277/3, 278/2, 204 (part), 205 (part), 206 (part), 207 (part), etc. i.e. OP Nos. 76, 77 and 78. It is the case of the petitioners that the respondent No.3 " AUDA has formed a practice of exchange of plots of land to the allottees of Final Plot as per the Draft TP Scheme even before the sanction to the Draft TP Scheme by the State Government under Section 48 of the Act and/or before finalization of the TP Scheme. It is the case of the petitioners that the petitioners and respondent Nos.4 and 5 were put into possession of various Survey Numbers forming part of Final Plot No. 70 but they did not get the possession of the Survey Nos. 199 (part), 202 (part), 206 (part), 205 (part), 204 (part), 275 (part), 276 (part) and 286 (part), which Survey Numbers belonging to Sola Gram Panchayat. It is the case of the petitioners that the petitioner No.1 and respondent Nos.4 and 5 requested the Sarpanch, Sola Gram Panchayat, to give possession of the said lands to them and the said request was considered by the Sola Gram Panchayat and the Sola Gram Panchayat resolved to hand over the possession of the said lands to the petitioner No.1 as well as respondent Nos.4 and 5 and the petitioner No.1 came into possession of Survey Nos. 204 (part), 205 and 206 of Village Sola, held by the Sola Gram Panchayat. It is the case of the petitioners that the respondent No.5 submitted an application for the development of the land bearing Survey Nos. 282/3, 279, 280, 281, 282/1+2, 304/1, 303, 302, 299, 298, 294/2, 313/3/5, 303/2, 141/5, 137/2, 136/1, 138/1 and 138/2 admeasuring about 75,455 sq. mts. of land divided into various sub-plot Nos.1 to 45. It is the case on behalf of the petitioners that as the land bearing Survey Nos. 204 (part), 205 (part), 206 (part), 275 (part), 276 (part), 285 (part), 286, 288, 289, 290 and 291 (part) which merged into Final Plot No. 70 could not be considered for the development permission as the owners of the said lands had not consented for the same and hence, sub-plot Nos.1 to 10, 12, 17, 18, 27, 28, 40 and 45 were not considered for granting the development permission. It is also the case of the petitioners that the petitioner No.1 and the respondent Nos. 4 and 5 mutually divided the said plot numbers for their occupation and development and accordingly, the petitioner No.1 applied for the development permission to the respondent No.3 " AUDA and such permission was granted by the AUDA on 19th February, 2005 and after obtaining the necessary development permission, the petitioner No.1 started construction inter alia on the lands bearing Survey Nos. 204, 205 and 206 received from Sola Gram Panchayat. That the petitioner No.1 received Stay Order from the respondent No.2 i.e. Mamlatdar, Taluka Daskroi, District Ahmedabad, dated 15th April, 2005 stating that according to the panchnama made by the Talati-cum-Mantri of Sola Gram Panchayat, the petitioner No.1 and its developer Siddhi Corporation had put up unauthorized construction and therefore, they should immediately stop that construction and they were informed that if the Stay Order is violated, criminal action will be taken against the concerned persons. It is the case of the petitioners that they have immediately replied to the said Stay Order by communication dated 2nd May, 2005, however, nothing further was done and therefore, the petitioners have preferred the present Special Civil Application for the aforesaid reliefs.
(2.) It is the contention on behalf of the petitioners that the petitioners and the respondent Nos.4 and 5 have been allotted 50% of the lands held by them originally by way of Final Plot No. 70 and they have been asked to pay various charges in respect of the said development i.e. an amount of Rs. 33,49,628/- is paid for processing the application for development (betterment charges) and an amount of Rs. 1,05,928/- has been paid by the petitioner No.1 to the respondent No.3 " AUDA in respect of FSI and also various other charges have been paid as mentioned in para-12 of the petition. It is also submitted on behalf of the petitioners that they have been put into possession of the aforesaid Survey Nos. 204, 205 and 206 by Sola Gram Panchayat as the said Survey Numbers stood vested in the petitioner No.1, respondent Nos.4 and 5 and the respondent No.3 " AUDA is implementing the TP Scheme pending the approval of the State Government under Section 48 of the Act by mutual consent on the presumption that the Scheme shall be approved and the lands proposed to be allotted in lieu of the original Plot shall vest in the allottee as if the provisions of Section 67(b) of the Act has come into force and the lands vest in the allottee and the development permission is granted and the Stay Order granted by the respondent No.2 is absolutely illegal. It is submitted that the Stay Order granted on the ground that the land bearing Survey Nos. 204, 205 and 206 of village Sola are Gauchar land. However, in view of the allotment of Final Plot No. 70 the status of the Gauchar land would not be continued as the said land is included in the Draft TP Scheme and it looses its character as such and therefore also, it is submitted that the petitioner No.1 is entitled to carry on construction on the said lands. It is also further submitted that initially when government land was taken over in the Draft TP Scheme and in lieu thereof other portion of the land which was allotted in the Draft TP Scheme, a representation was made by the Collector that a substantial portion of the land to be allotted under the Draft TP Scheme should abut on the main road and in lieu of this representation, the AUDA made some changes in the Draft TP Scheme and allotted a portion of land of Final Plot No. 7 allotted to the petitioner No.1 to the State Government and inspite of such cooperation by the petitioners and the respondent Nos.4 and 5, the respondent No.2 has in utter disregard to the practice adopted by the AUDA held that the land bearing Survey No. 204, 205 and 206 of village Sola are Gauchar land and that the petitioner No.1 has put up unauthorized construction on the said land and thereby issued the Stay Order, which is absolutely illegal and contrary to the practice adopted by the AUDA and therefore, it is requested to allow the present Special Civil Application and to grant the reliefs as prayed for.
(3.) The present Special Civil Application is opposed by the State Government and an affidavit-in-reply is also filed by the Collector, Ahmedabad. It is submitted that the present petition is nothing but an attempt to regularize the unauthorized occupation of the government land which at no point of time was granted in favour of the petitioners by any competent authority. It is further submitted that at the time when the Draft TP Scheme is prepared by the AUDA, the land belonging to the government and private land was given Final Plot No. 70 admeasuring 75,455 sq. mts. of land and actually the land belonging to the State Government admeasuring 56,529 sq. mts. of land out of the land admeasuring 1,50,910 sq. mts against which in the Final Plot No.70, land admeasuring 75,455 sq. mts. was sought to be allotted to the State Government as government land. It is further submitted that the respondent No.3 " AUDA has not taken into consideration the objections raised by the Office of the District Collector, Ahmedabad, and without considering the objections, the AUDA earmarked the Final Plot No. 70 and the same was sought to be allotted to the State Government against its original holding of various Survey Numbers admeasuring 56,529 sq. mts. It is also further submitted that the land belonging to the State Government in its original Survey Numbers were adjoining and/or situated adjacent to the Sarkhej " Gandhinagar Highway, more precisely, the same is situated opposite the High Court premises and the same was very valuable land. It is further submitted that the AUDA in utter disregard to the objections raised by the Office of the District Collector, Ahmedabad, has proposed to allot the same to the third party, i.e. the petitioners herein, and allotted the said land to the petitioners for carried out constructions over the said land. It is also further submitted that the land bearing Survey Nos. 204 paiki, 205 paiki, 206 paiki, 207 paiki, 273 paiki, 275 paiki and 276 paiki admeasuring 56,529 sq. mts. belongs to the State Government, when the Draft TP Scheme was prepared by the AUDA, the aforesaid lands were forming part of Final Plot No. 70. The AUDA sent TP Scheme No. 28 to the State Government under the provisions of Section 48(1) of the Act on 17.7.2000. The AUDA communicated to the Government by letter dated 20.8.2002 to give the possession of the aforesaid Survey Numbers. The Sola Gram Panchayat passed resolution No. 4 of 2003 dated 4th February, 2003 resolving to hand over the possession of the land (Gauchar land Bunyadi Sala, etc.) bearing Survey Nos.199 paiki, 204 paiki, 205 paiki, 206 paiki, 275 paiki, 276 paiki and 286 paiki in favour of the respondent Nos.4 and 5. It is also further submitted that the Collector, Ahmedabad, lodged his objections against the implementation of the TP Scheme on 9/12th June, 2003. The Collector, Ahmedabad, by letter dated 9/12th June, 2003 requested the government for implementation of the TP Scheme only after considering the objections raised by him. It is also further submitted that the AUDA wrote a letter to the Collector, Ahmedabad, dated 5th February, 2004 informing that the AUDA will retain 9900 sq. mts. of land in the frontage of Final Plot No. 70 and will allot the land bearing Survey Nos.279, 280 and 281 i.e. Final Plot No. 70/2 to the private owners. The Collector wrote to the AUDA that since the issues raised by them vide letter dated 9/12th June, 2003 are not fulfilled the said proposal is not capable of being accepted. In the meantime, the development permission was given by the AUDA to the petitioners to develop the land bearing Survey Nos. 279, 280 and 281 in Final Plot No. 70. It is also further submitted in the affidavit-in-reply that by letter dated 15th April, 2005, the Mamlatdar, Daskroi, District Ahmedabad, passed an order restraining the petitioners from making further construction and despite the aforesaid order, the petitioners continued with the illegal construction on the land of the government, the possession of which was with the State Government as the Draft TP Scheme is not yet sanctioned. It is also further submitted in the reply that the Collector by letter dated 13th May, 2005 informed the AUDA that since the Collector has not given the possession of the land in question, the AUDA may not give development permission in respect of the said land and in the meantime, on 18th May, 2005 the Talati-cum-Mantri authorized by the Mamlatdar filed FIR with Sola Police Station for the offences punishable under Sections 188 and 114 of the I.P.C. It is also further submitted in the reply that by order dated 2nd June, 2005 the State Government in exercise of its powers under Section 108 of the Gujarat Panchayat Act; 1993 resumed the Gauchar, Bunyadi Sala, etc. land situated in Survey Nos.199 Paiki and other lands for which the Sola Gram Panchayat passed a resolution dated 4th February, 2003. It is also further submitted in the reply that the resolution passed by the Sola Gram Panchayat in favour of the petitioner " society giving land and other issues came to be cancelled on 1st August, 2005 by the TDO in exercise of powers under Section 249 of the Act. It is also further submitted in the reply that even after filing of the FIR, the petitioner " Society continued with the construction on the land till 10th June, 2005 and the said fact was brought to the notice of the Assistant Commissioner of Police, pursuant to which, necessary steps were taken by the concerned Police Inspector. It is submitted on behalf of the Collector, Ahmedabad, that as the land bearing Survey Nos. 204 paiki, 205 paiki and 206 paiki which is proposed to be allotted under the Draft TP Scheme as part of Final Plot No. 70 is a Gauchar land and therefore, the same could not have been allotted to the petitioners and the respondent Nos.4 and 5 and unless and until the TP Scheme has become final, the petitioners and the respondent Nos.4 and 5 could not have started the construction as it cannot be said that they have become the absolute owners of Final Plot No. 70, more particularly, when the said government land could not have been allotted to the petitioners and the respondent Nos. 4 and 5 and therefore, the Mamlatdar, Daskroi, has rightly issued the stay order to avoid any further multiplicity of proceedings and to stop the illegal construction, which is just and proper and therefore, it is requested to dismiss the present Special Civil Application.;