SCA/914220/2008 7/ 7 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9142 of 2008 ========================================================= BALENDU DINKARRAI SWADIYA - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR NV ANJARIA for Petitioner(s) : 1, MS BHAVIKA KOTECHA, AGP for Respondent(s) : 1 - 2. None for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 22/08/2008 ORAL ORDER
The
petitioner by this petition has prayed for the writ to quash and set
aside the decision of the respondent authority in dividing two
homogeneous class of earthquake affected person, viz. one who had
lost their residential property by paying compensation and the one
who shifted elsewhere from the original place at the relocation
side, wherein, the plot was given to them. The petitioner has
already prayed for other consequential reliefs including for
directing the respondent authority to pay compensation to the
petitioner as per the provisions of Gujarat Town Planning and Urban
Development Act (hereinafter the Act ).
Heard
Mr. Anjaria, learned counsel for the petitioner.
The
contention raised on behalf of the petitioner is that the State
could not discriminate amongst two classes of the persons who are
similarly situated for holding of the property which is included in
the Scheme. It was submitted that merely because the petitioner
opted for surrendering of the plot and allotment of plot at the
relocated site pursuant to the Govt. Resolution dated 24.04.2001,
would not enable the Government to classify differently thereby to
deprive the petitioner from payment of compensation as per the
provisions of the Act. It was submitted that if the petitioner after
surrendering of the plot also continues to be the owner and in the
scheme under the Act, the petitioner would be entitled to the
compensation and at the most, the price of the land which is
adjusted at the time of relocation of the plot may be deducted. It
was also submitted that all owners of the property which are
included in the Scheme are of same class and differential treatment
cannot be given based on the GR dated 24.04.2001, which is only by
way of an executive fiat and no statutory provision is in existence
and therefore, consequently, the action may also be violative of
Article 300A of the Constitution. It was therefore submitted that
this Court may interfere.
Having
considered the above, it deserves to be recorded that after the
earthquake, the Government came out with the scheme vide Resolution
dated 24.04.2001 in all earthquake affected area and more
particularly in Kutch district which was heavily affected by
earthquake. The Scheme inter alia provided that in the old town
where the persons were holding the property, on account of the
earthquake, after damage or otherwise, if they were desirous to
surrender the property, they would be allotted a separate plot at
the reallocation site at a concessional rate and while recovering
the price of such plot at the relocation, set off shall be given of
the price at Rs.300/- per sq. mtr. of the property which existed in
original town and affected by the earthquake. The aforesaid is
apparent from the Scheme of the resolution dated 24.04.2001.
The
petitioner opted for the benefit of the Scheme and surrendered the
property in the old town which was affected by earthquake and it is
an admitted position that the petitioner is allotted a plot at
reallocation site and while recovering the price of such plot at
reallocation site, the set off has been given of the amount and only
difference was to be recovered. In case of the petitioner, there
was surplus amount of Rs.1510/- and therefore, no difference is even
recovered. It also appears that thereafter, the scheme is floated
in the town of Bhuj under the Act, but as in the revenue record, the
petitioner continued as the owner, the notices were issued under the
Act for fixation of the compensation and the petitioner is now
claiming that the compensation be paid to him as if he is owner of
the property as per the Scheme of the Act. It may be recorded that
during the course of the hearing, to test the genuineness of the
submission and thereby to examine the bonafide on the part of the
petitioner, a query was put to the learned counsel for the
petitioner that whether the petitioner would like to surrender the
plot allotted at reallocation site pursuant to the Govt. Resolution
so that the matter could be considered for directing the authority
for payment of compensation in accordance with law as per the
provisions of the Act. However, the learned counsel was not in a
position to make such declaration and he contended that if the said
plot is surrendered, the petitioner will have no space to occupy and
therefore, such declaration cannot be given.
The
aforesaid shows that the petitioner who is beneficiary of the
Government Resolution dated 24.04.2001, when had to take benefit of
the Scheme of the earthquake affected person, had no objection in
surrendering the plot to the Government for obtaining another plot
at the relocation site and also the benefit of the adjustment of the
price as was fixed vide the said resolution for the surrendered
property. Once the property was surrendered by getting the proper
amount as compensation by way of adjustment at the time of allotment
of new plot at relocation site, the petitioner cannot be heard to
say that he continues to be the owner of the property which is
already surrendered by him. Not only that, but having taken the
benefit of allotment of the plot at the relocation site, if such
contention is entertained, it would result into approbating and
reprobating at the same time and it would enable the party to take
undue benefit of his own conduct, more particularly, when the
petitioner has shown disinclination to surrender the plot at the
relocation site. It is hardly required to be stated that one who
has enjoyed the benefit of the policy of the Government cannot be
heard to say at the later stage that such policy is
unconstitutional, more particularly when the benefit procured by him
pursuant to such policy is not surrendered by such person.
The
petitioner once having taking the benefit of the policy, as observed
earlier, could not be continued to hold the property as the property
was surrendered to the Government/authority and as a consequence
thereof, no compensation could be claimed by the petitioner as if
the owner of the property.
The
contention that by executive fiat, vide Govt. Resolution dated
24.04.2001, the ownership of the property could not be taken away
and the action therefore would be violative of Article 300A of the
Constitution, cannot be accepted for the simple reason that after
having surrendered the property, the petitioner could not be said as
continued to hold the property. Further, once the scheme has come
into existence as per the provisions of the Act, the property would
at the first hand vest to the authority and the plots are to be
reallotted under the scheme at the time of finalisation. It is true
that if the property is taken in the scheme, the owner may be
entitled for compensation, but when the petitioner had already
surrendered the property to the authority pursuant to the Govt.
Resolution dated 24.04.2001 and thereby, having already taken the
benefit for allotment of a new plot at the relocation site, it
cannot be said that as per the provisions of the Act, the petitioner
will continue to hold the property enabling him to get the
compensation, more particularly when the petitioner is not ready to
surrender the plot allotted to him at the relocation site.
The
aforesaid is coupled with the circumstance that if such a contention
is entertained from the mouth of the person who has taken the
benefit of the policy, it would result into permitting the
petitioner to take undue benefit therefrom and therefore, can be
said as one of the valid ground to decline the entertainment of the
petition for invoking equitable jurisdiction of this Court under
Article 226 of the Constitution.
In
view of the above, no case is made out for interference. Hence,
rejected.
(JAYANT PATEL, J.)
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