AO/364/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 364 of 2006 WITH CIVIL APPLICATIN No. 15188 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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 ? ========================================================= ABDUL KADAR & 14 - Appellant(s) Versus SUNNI MUSLIM WAQF COMMITTEE THRO' PRESIDENT & 2 - Respondent(s) ========================================================= Appearance : GIRISH PATEL ASSOC for Appellant(s) : 1 - 15. NOTICE SERVED BY DS for Respondent(s) : 1, MRS KETTY A MEHTA for Respondent(s) : 1, MR PRASHANT G DESAI for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 31/07/2008 ORAL JUDGMENT 1. Present Appeal From Order is filed by the appellants – original plaintiffs of Civil Suit No.1380 of 2006 pending in the City Civil Court at Ahmedabad, challenging the order AO/364/2006 2/7 JUDGMENT dtd.7/11/2006 passed by the learned City Civil Judge, Court No.10, Ahmedabad below notice of motion in Civil Suit No. 1380 of 2006 in dismissing the said notice of motion. 2. The appellants – original plaintiffs were in possession of the land bearing Survey No.137-A and 137-B, Final Plot No. 461 of Town Planning Scheme No.3 (Ellisbridge), Ahmedabad. The original defendant No.1 – Sunni Muslim Waqf Committee and the Trust claimed to be owner of the aforesaid land. The appellants – original plaintiffs claimed to be leasee/tenant of the shops constructed over the aforesaid plots. The aforesaid plots are reserved under the Town Planning Scheme for Ahmedabad Municipal Corporation for graveyard (Kabrasthan). That all the plaintiffs were served with the notices under sec.68 of the Gujarat Town Planning and Urban Development Act (hereinafter shall be referred to as “the Act” for short) and Rule 33 of the Rules of 1979 (hereinafter shall be referred to as “the Rules” for convenience) individually by the Ahmedabad Municipal Corporation dtd.26/11/2004. As the plaintiffs were apprehending that their possession will be disturbed and they will be dispossessed, they filed the aforesaid Civil AO/364/2006 3/7 JUDGMENT Suit and taken out notice of motion for restraining the Ahmedabad Municipal Corporation from dispossessing them. That the learned City Civil Judge, dismissed the said notice of motion by observing that so far as the possession is concerned, the plaintiffs are already dispossessed long back and their superstructures asre demolished. The learned Chamber Judge also observed that the plots in question are reserved under the Town Planning Scheme as graveyard and the same cannot be used by anybody for the purpose other than the purpose for which it is reserved. Being aggrieved by and dissatisfied with the order passed by the trial court below notice of motion, the appellants – original plaintiffs have preferred present Appeal From Order. 3. Mr.Girish Patel, learned senior advocate appearing on behalf of the appellants has vehemently submitted that they are leasee/tenants of the trust and a dispute is going on between the trust and the Corporation with respect to the ownership and/or management of the graveyard and there is an ad-interim order in favour of the trust with respect to the possession and that they are dispossessed and/or the superstructures which was standing over the plots in question are demolished so long as possession of AO/364/2006 4/7 JUDGMENT the trust is concerned, illegally and therefore, their possession should be continued. 4. On the other hand, Mr.Prashant Desai, learned advocate appearing on behalf of the Ahmedabad Municipal Corporation has submitted that it is not in dispute that under the finalised Town Planning Scheme, the plots in question are reserved for graveyard for Ahmedabad Municipal Corporation and under the provisions of the Act, once Town Planning Scheme has become final, all the properties/lands vest absolutely with the Ahmedabad Municipal Corporation free from all encumbrances. It is further submitted that as such the land in question can be used only for the purpose for which it is reserved under the finalised Town Planning Scheme and there shall not be any other use de-hors the Town Planning Scheme. It is submitted that admittedly the appellants were using some portion of the land in question for the purpose other than graveyard by putting construction of shops which were being used as Garages etc. and the said superstructures are already demolished/removed long back and they cannot be permitted to use and occupy the land in question for the purpose other than the purpose for which the land is reserved i.e. graveyard. It is also AO/364/2006 5/7 JUDGMENT further submitted that even the trust cannot use the land for the purpose other than graveyard. It is submitted that even the learned Single Judge of this Court in the proceedings initiated by the trust with respect to the administration, management and ownership of the graveyard, has specifically reserved liberty in favour of the Ahmedabad Municipal Corporation to initiate appropriate proceedings under the Act and therefore, notices under sec.68 of the Act read with rule 33 of the Rules were issued and thereafter, after following due procedure, the superstructures have been demolished. Submitting accordingly, it is requested to dismiss the present Appeal From Order. 5. Heard the learned advocate appearing on behalf of the respective parties. 6. It is an admitted position and not disputed by the learned advocate appearing on behalf of the appellants – original plaintiffs that the plot in question upon which superstructures of the plaintiffs were there, is reserved for graveyard since 1940 for Ahmedabad Municipal Corporation. Thus, under the finalised Town Planning Scheme the plot in question is required to be used only for graveyard (Kabrasthan) and nobody can be permitted AO/364/2006 6/7 JUDGMENT to use the plot in question for the purpose other than the purpose for which the plot is reserved under the finalised Town Planning Scheme i.e. graveyard. Admittedly, the plaintiffs were using some portion of the land in question by making superstructures of shops which were used for Garages etc., and the same was de-hors the reservation under the Town Planning Scheme. The only contention on behalf of the appellants is that in a proceeding initiated by the trust, the learned Single Judge has protected the possession of the trust, however, it is to be noted that while granting some interim relief in favour of the trust. It is specifically observed by the learned Single Jude that it will be open for the Ahmedabad Municipal Corporation to take appropriate actions against the occupiers, after following due procedure under the Act. The Ahmedabad Municipal Corporation has issued notices under sec.68 of the Act read with rule 33 of the Rules and thereafter has demolished the superstructures. Once the land is reserved for a specific purpose under the Town Planning Scheme, the same is required to be used only for the purpose under the reservation. On finalisation of the Town Planning Scheme, all the lands vest in the Ahmedabad Municipal Corporation free from all AO/364/2006 7/7 JUDGMENT encumbrances and the plaintiffs cannot be permitted to use and occupy the plots in question for the purpose other than graveyard (Kabrasthan). Considering the above, it cannot be said that the trial court has committed any error in dismissing the notice of motion, on the contrary granting any relief in favour of the plaintiffs would be contrary to the finalised Town Planning Scheme, which is not permitted. 7. For the reasons stated above and when the shops are already demolished, present Appeal From Order deserves to be dismissed and is accordingly dismissed. In view of the dismissal of the Appeal From Order, Civil Application is also dismissed. Ad-interim relief granted earlier stands vacated forthwith. In the facts and circumstances of the case, there shall be no order as to costs. [M.R. SHAH, J.] rafik