LPA/435/1995 of STATE OF GUJARAT Vs AHMEDABAD URBAN DEVELOPMENT AUTHORITY on 19 December 1995

1. Whether Reporters of Local Papers may be allowed to see thejudgements? : Yes

2. To be referred to the Reporter or not? :Yes

3. Whether Their Lordships wish to see the fair copy of thejudgement? : No.

4. Whether this case involves a substantial question of law asto the interpretation of the Constitution of India, 1950 of anyOrder made thereunder? No.

5. Whether it is to be circulated to the Civil Judge? No.

STATE OF GUJARAT vs AHMEDABAD URBAN DEVELOPMENT AUTHORITY

Appearence: Mr. S.N. Shelat, Additional A.G.P., with Mr. Y.F.Mehta, ASST. GOVERNMENT PLEADER for appellants Coram : THE ACTG.C.J. RA MEHTA and MR.JUSTICE M.S.SHAH

ORAL JUDGEMENT

The appellants [ the State of Gujarat and the InspectorGeneral of Prisons ] are aggrieved by the ex-parte ad-interimorder directing the authorities to hand over the possession ofthe lands within 15 days.

The original petitioners were owners of original plotsNo.177, 178 and 179. Under the final town planning scheme, whichcame into force in the year 1982, these plots vested in theAuthorities and the petitioners were given other lands beingplots No. 676, 677 and 678. However, for as many as 12 years,the petitioners were not given possession of these plots. The possession of the original plots of the petitioners was takenlong back and a new overbridge has already been constructed onthe same.

Ultimately, the State Government has passed a resolutionon 6th December 1994, Annexure "J" to the petition, directingthat the petitioners be given possession of final plots No.676,677 and 678 and the Inspector General of Prisons and theMunicipal Authorities were directed to hand over the possessionof the plots to the petitioners within one month. As thisdirection of the State Government was not complied with, thepetitioners preferred Special Civil Application No. 5366 of1995.

The learned Single Judge admitted the petition andgranted ex-parte ad-interim relief in terms of paragraph 20(C)directing the authorities to hand over the possession of finalplots No. 677 and 678 of Town Planning Scheme No. 28 and landadmeasuring 1103 sq.mtrs, just adjoining the aforesaid finalplots within a period of 15 days.

Being aggrieved by that order, the present appeal hasbeen preferred.

The learned Additional Advocate General for theappellants is right when he submitted that the mandatory order ofthis nature should not have been granted ex-parte. However, wehave now fully heard the matter biparte. The learned AdditionalAdvocate General submits that granting of this relief wouldamount to allowing the petition and ought not to have beengranted and ought not to be granted. Reliance is placed on thejudgment of the Honourable Supreme Court in the case of Bank ofMaharashtra vs. Race Shipping and Transport Co. Pvt. Ltd.,reported in AIR 1995 Supreme Court 1368. In that case, theSupreme Court observed that the practice of granting interimorder which practically gives the principal relief sought in thepetition for no better reason than that a prima facie case hasbeen made out, without being concerned about the balance ofconvenience, the public interest and a host of otherconsiderations, is deprecated. That was the case where the Bankwas alleged to have made payment on forged cheque and the HighCourt has passed interim order for reimbursement to the accountholder. There was a dispute as to whether the cheque was forgedor whether payment was correctly made following procedure forhonouring cheque. In view of serious disputes, the Supreme Courtheld that it could not be said that prima facie case was made outby the account holder for reimbursement. It is to be noted thatin this case it is not only the prima facie case which thepetitioners have made out, but it is also not in dispute that thepossession of the original plots of the petitioners had beentaken by the Authorities under the town planning scheme in the year 1982; it is also not in dispute that in the town planningscheme, final plots Nos. 676, 677 and 678 have been earmarkedand allotted to the petitioners; it is also not in dispute thateven after lapse of 12 years, the petitioners have not been giventhese lands or anything else. The Government Resolution ofDecember 1994 is also very clear directing the authorities tohand over the possession of the said plots to the petitionerswithin one month. There is no legal answer to these pleas andfacts put forward by the petitioners.

The learned Additional Advocate General has also referredto and relied upon the judgment of the Honourable Supreme Courtin the case of Anup Engineering Limited vs. ShreenarayanKanaiyalal, reported in 1995 (1) G.L.H. 345. In that judgment,the Supreme Court held that at the interlocutory stage the HighCourt ought not to have pronounced on question of law. In thepresent case, there is no question of deciding any question oflaw, because the facts are undisputed and there is no defenceeither on facts or in law.

Issues

The only contention raised by the appellants is thatthere is adjoining land of open jail and, therefore, fromsecurity angle, the jail administration has objection to theseplots being allotted to any private party. As far as theprincipal central jail and its campus are concerned, they are faraway and even open jail and central prison are separated by theoverbridge road and that central prison is not in any wayconnected with these lands in question. In the land adjoiningthe disputed land, there is open jail. In this open jail,reformed prisoners including life convicts who have shownreformation and who may be trusted with some liberty, are kept.For all these years, this was not considered to be a reason fornot allotting these lands to the petitioners. Even now there isno variation of the town planning scheme nor is there anyacquisition of lands under the Land Acquisition Act. Therefore,as on today, the appellants have no right to retain these lands.Injustice to the petitioners spread over more than 12 years iseloquent with gross delay, and the inaction on the part of theAuthorities is also deplorable.

Moreover, the learned counsel for the originalpetitioners submitted that the petitioners undertake that theywill not deal with or dispose of these lands or part with thepossession of the lands in any manner and that they will not putup any construction on the same for a period of one year, so thatif the Government can take any legal action for acquiring theselands, the Government is not prejudiced, and in the event ofcourt directing the petitioners to return the possession, theyshall be in a position to do so subject to their right tochallenge such a decision.

In view of these clear and undisputed facts and the long injustice suffered by the petitioners, the ad-interim orderpassed by the learned Single Judge does not call for anyinterference, especially in view of the undertaking given by theoriginal petitioners.

In the result, the appeal is dismissed with no order asto costs. The original petitioners to file an undertaking andserve a copy on the learned Additional Advocate General for theappellants. The appellants are directed to hand over thepossession of the lands to the original petitioners within onemonth from the date on which the undertaking is filed in thecourt.

THE ACTG.C.J. RA MEHTA

���(M.S. Shah, J.)