SCA/11717/2000 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No.11717 of 2000 WITH CIVIL APPLICATION No.13960 of 2008 In SPECIAL CIVIL APPLICATION No.11717 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- =================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO =========================================== SANJIV TEJRAM BANSAL - Petitioner(s) Versus REGIONAL MANAGER & 1 - Respondent(s) =================================================== Appearance : MR DIPAK R DAVE for Petitioner(s) : 1, MR RK MISHRA for Respondent(s) : 1 - 2. =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 11/12/2008 ORAL JUDGMENT (1) This petition has been preferred praying for the following reliefs: SCA/11717/2000 2/9 JUDGMENT “(A) To admit this petition; (B) To issue a writ of mandamus and certiorary and/or any other appropriate writ, order and/or direction in nature of certiorary quashing and setting aside the impugned order dated 16th February 2000 passed by the respondent No.2 herein annexed at annexure 'J' to the petition for taking over possession of the plot no. H/23/6 situated at Industrial Area, Sachin, District Surat under the provisions of Gujarat Public premises (Eviction of unauthorised occupants) Act, 1972 as well as the order dated 16th August, 2000 passed by the respondent No.1 annexed at annexure 'K' to the petition for recovery of Rs.1,46,642/- and further be pleased to allow this petition which cost in the interest of administration and justice; (B)(i) Issue a writ of mandamus or any other appropriate writ, order or direction for quashing and setting aside the order passed by the respondent on 16.07.1999 terminating the agreement with the petitioner in the interest of justice; (C) To stay the implementation, execution and operation of the impugned orders dated 16th February, 2000 and 10th August, 2000 passed by the respondents Nos.2 and 1 respectively and annexed at Annexures 'J' and 'K' respectively SCA/11717/2000 3/9 JUDGMENT to this petition and further be pleased to direct the respondents not to recover an amount of Rs.2,84,664/- from the petitioner and not to allot the plot no.H/23/6 to any other party as the respondent No.1 is paid huge amount by the petitioner so far and inspite of that the physical possession is not handed over to the petitioner and the impugned actions are unauthorised and unlawful and further be pleased to hand over the physical possession of the plot in question to the petitioner forthwith as per the Agreement, referred to herienabove, by way of an interim relief, in the interest of justice; (D) To pass such other and further orders as the nature of the case may require.” (2) The petitioner had applied to the respondent- Corporation for allotment of plot in G.I.D.C. Estate at Sachin. It appears that plot No.H/23/6 was allotted by the respondent- Corporation vide order dated 13.03.1996. Thereafter, the possession of the plot was not given to the petitioner : the grievance of the petitioner being that the possession was never handed over to the petitioner despite the SCA/11717/2000 4/9 JUDGMENT petitioner having made requisite payment and executed necessary agreement, while the case of the respondent-Corporation being that the petitioner did not take the possession of the plot in question. The petitioner has also challenged the action of the respondent authority seeking to recover a sum of Rs.2,84,664/- (which figure has since been amended at this stage by the learned advocate for the petitioner to read as Rs.1,46,642/-). (3) It is not necessary to set out other facts and the respective contentions in light of the following averments which appear in affidavit- in-reply dated 10.12.2008: “3. I respectfully submit that the petitioner made an application to the G.I.D.C., Surat for allotment of plot and the Plot No.H/23/6, at Sachin Industrial Estate, Sachin, District Surat was allotted to the petitioner. The petitioner, vide his letter dated 26.4.1996, paid the offer money for the plot and requested to allot him Plot No.H/23/10 instead of Plot No.H/23/6, but his request was refused SCA/11717/2000 5/9 JUDGMENT and finally Plot No.H/23/6 at Sachin Industrial Estate, Sachin, District Surat was allotted to him. 4. I respectfully submit that the petitioner failed to take actual and physical possession of the plot and, thereafter, through prescribed procedure under the law, the GIDC restored back the physical possession of the Plot No.H/23/6 at Sachin Industrial Estate, Sachin, District Surat. 5. I respectfully submit that the petitioner herein approached the Regional Manager, GIDC at Surat vide letter dated 18.7.2008 to allot him a new plot instead of Plot No.H/23/6 at Sachin Industrial Estate, Sachin, District Surat. In the said letter, the petitioner has mentioned that regarding the dispute arising of allotment of Plot No.H/23/6 at Sachin Industrial Estate, Sachin, District Surat, he approached the Hon'ble High Court of Gujarat vide Special Civil Application No.11717 of 2000 and the petitioner has withdrawn the said Special Civil Application. He also mentioned that as per the order of the Hon'ble Court, another Plot is to be allotted to him or amount deposited shall be refunded. Thus, the petitioner has requested in the said letter to allot him another Plot or to refund money SCA/11717/2000 6/9 JUDGMENT deposited by him. A copy of the said letter dated 18.7.2008 to the Regional Manager, GIDC, Surat is annexed hereto and marked as ANNEXURE-'RR1' to this affidavit. 6. I respectfully submit that on the basis of the said letter, at Annexure-'RR1', the application of the petitioner has been forwarded to the Head Office, Gandhinagar to consider his application. A copy of the forwarding note maintained by the Branch Office, GIDC at Surat is annexed hereto and marked as ANNEXURE-'RR2' to this affidavit.” (4) The aforesaid affidavit has been filed in response to the directions made by this Court on 02.12.2008. At this stage it is necessary to take note of the fact that the petitioner has moved Civil Application No.13960 of 2008 seeking to amend the prayer clause by adding the following two prayers as a consequence of the subsequent developments which have occurred: “8(b)(ii) to issue writ of mandamus and/or certiorari and/or any other appropriate writ, order of direction to SCA/11717/2000 7/9 JUDGMENT direct the respondents to immediately allot Plot No.H-23-6 and in the alternatively if GIDC is not in a position to allot the said plot then GIDC may be directed to allot suitable new plot to the petitioner; “8(b)(iii) to direct the GIDC to make the payment of Rs.2,95,592/- with 24% interest per annum from the date when the said payment was received by GIDC till the date of its realization by the petitioner; As the subsequent developments have been taken care of in the affidavit-in-reply filed by the respondent-Corporation, it is not necessary to grant permission to amend the petition. (5) In light of the fact that the respondent- Corporation is considering the request of the petitioner to allot another plot or to refund the money deposited by the petitioner considering the admission of the respondent- Corporation that the physical possession of the plot as of today vests with the respondent-Corporation, the principal grievance of the petitioner regarding SCA/11717/2000 8/9 JUDGMENT allotment would not survive. As the respondent-Corporation is considering the said aspect of the matter it is not necessary to make any further observation in relation to the same. (6) In so far as the amount which is sought to be recovered from the petitioner, suffice it to state that there is a serious dispute between the parties as to whether the possession of the plot, originally allotted to the petitioner, was handed over and taken over by the petitioner or not. Unless and until the respondent-Corporation is in a position to show that the petitioner was called upon to take the possession of the plot at a particular point of time on a particular day, the respondent-Corporation cannot be permitted to effect recovery of an amount on the basis of so-called non-utilization of the allotted plot. Hence, the demand for a sum of Rs.1,46,642/- made by the respondent- Corporation cannot be sustained and is quashed SCA/11717/2000 9/9 JUDGMENT and set aside. (7) The aforesaid order shall not preclude the respondent-Corporation from either allotting another plot of land in the Estate or refunding the amount deposited by the petitioner in accordance with law. (8) The petition is accordingly allowed in the aforesaid terms. Rule made absolute to the aforesaid extent There shall be no order as to costs. (9) In light of the aforesaid order made in the main petition, the Civil Application is rejected accordingly. Sd/- [D. A. MEHTA, J] *** B h a v e s h *