Gujarat High Court dismisses PIL alleging change in land use of AMC plots

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The Gujarat High Court has dismissed a Public Interest Litigation (PIL) filed seeking directions to the Ahmedabad Municipal Corporation (AMC) to identify public plots marked for a public purposes in the city of Ahmedabad.

The PIL was filed by Nileshbhai Narayanbhai Mistry to maintain a list of such plots at the office and further erect notice boards on public plots mentioning the purpose for which they are reserved. The PIL also seeks directions to  ensure strict compliance of General Development Control Regulation (GDCR) Rules in accordance with law by not extending undue favors to anyone.

It is the grievance of the petitioner that in 2007 area of Ahmedabad Urban Development Authority (AUDA) was merged with Ahmedabad Municipal Corporation (AMC) and during 2011, various plots have been handed over to AMC along with list of plots and the said list would disclose that the purpose for which the lands were earmarked, such as ‘open space’, ‘local market’, centre’, ‘educational purpose’ but not to different use.

It is contended that as per the sanctioned Final Town Planning Scheme of AMC, the said lands are required to be used for the purpose of which it is reserved and petitioner claiming to be an RTI activist and public spirited person is said to have obtained information under the Right to Information Act which he claims would reveal that plots reserved are being used against the purpose for which it is earmarked. It is further contended that officials of the corporation have shown complete dereliction of duty in not maintaining such plots by preventing encroachment, as a result of which the encroachers are able to unauthorisedly use the government land for years together.

It is also contended that there is a scarcity of gardens in the city of Ahmedabad and the gardens already developed are mostly crowded during morning and evening hours, which would indicate that there is a scarcity of gardens, contending that such development of garden sis the requirement of the day for lawn space and to prevent air pollution which is not being executed by the instruments of the State.

While considering the PIL, the Division Bench of Chief Justice Aravind Kumar and Justice Ashutosh J. Shastri observed that in a given circumstance, a plot allotted to a person may result in construction being put up, hands having changed, further improvements having been made to the building and in such circumstances, the allotment of the land made cannot be challenged after long lapse of period and even without whispering a word regarding cause for not appealing to the Court earlier in the petition for such inordinate delay.

In other words, even if there were circumstances where there is delay and writ court is required to exercise the extraordinary jurisdiction, it would be incumbent upon the writ applicant to prima facie establish that there was no delay and if there is delay, there was sufficient cause for such delay and there are no third party rights which has intervened during the interregnum. The petitioner has contended that the plots are the instances where those plots having been put to use for other purposes than for which it was reserved or earmarked is an argument which looks attractive at the first blush but not so on a slight deeper examination and is liable to be rejected in limine for myriad reasons, observed the Bench.

Though petitioner claims in the petition that said plot was allotted to a third party, the fact remains that said plot was auctioned by the instrument of the State by conducting a public auction and the highest bidder was granted the said land in the auction held during January 2003, pursuant to which formalities there under got concluded in 2006 resulting in a copy of the allotment letter being issued to the bidder and as such, the exercise undertaken by the instrument of the State cannot be construed as one resulting in an allotment being made to any particular individual.

The Bench held that it is also not in dispute and even according to learned counsel appearing for the petitioner, in the land so purchased by the bidder in public auction, a commercial complex has been put up, wherein shops have been established which include the local market which would cater to the needs of the local people.

“Hence, it cannot be contended by learned counsel appearing for the petitioner that land earmarked for being used as a ‘local market’ was being put to use for a different purpose or it would not fall within the definition of ‘local market’.”

The purpose for which the said plot was earmarked having met or in other words, the said commercial shops established in the plot meeting the requirement of the local populace, it cannot be contended by the petitioner that there has been divergence in the use of the plot or in other words, the plots which were earmarked for a particular purpose have been utilised for a different purpose. Even otherwise, accepting for a moment that contention of the petitioner deserves to be accepted, it would not stand the second test viz. the delay in approaching the court which would disentitle the petitioner to contend that this Court even in such circumstances will have to exercise the extraordinary jurisdiction.

The Court noted that according to the records made available, the auction having been conducted in 2003 and allotment having been made in 2006, the petitioner after lapse of 19 years / 16 years cannot contend that such delay is to be ignored or condoned. In fact, there is not even a whisper in the petition as to why the petitioner did not raise his little finger from 2003 / 2006 till the filing of the present petition in 2022, particularly when petitioner claims to be an RTI activist, a public spirited person and espousing the cause of the public. Hence, the Bench is of the view that it cannot be gainsaid by petitioner that there is no delay in approaching this Court.

“On the other hand, the delay of 19 years / 16 years would disentitle the petitioner to claim any relief at the hands of this Court. In fact, to a pointed question to the learned counsel appearing for the petitioner posed by the Court as to whether the shops have already been established or confronted, the answer has been in the affirmative. If it were to be so, there might be a third party rights which would have crept in and undisputedly, the owners of the shops not being party to the present proceedings no order prejudicial to their interest can be passed and in the event of there being change of ownership of shops / establishments by sale of their ownership rights, third party rights which have crept in cannot be allowed to be unsettled after long lapse of 19 years / 16 years at the instance of a so-called public spirited person. For this reason also, the relief sought for by the petitioner cannot be granted,” the order reads.

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