Gujarat High Court
Jashwantsinhji Audichya Brahman ... vs The Collector Surendranagar ... on 1 February, 2022
Bench: Sangeeta K. Vishen
C/SCA/11594/2018 ORDER DATED: 01/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11594 of 2018
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JASHWANTSINHJI AUDICHYA BRAHMAN VIDHYARTHI MANDAL
THROUGH MR. HARESHKUMAR KANTILAL DAVE
Versus
THE COLLECTOR SURENDRANAGAR DISTRICT & 2 other(s)
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Appearance:
MR PS CHAMPANERI(214) for the Petitioner(s) No. 1
MS ASMITA PATEL AGP for the Respondent(s) No. 1,2,3
THAKKAR AND PAHWA ADVOCATES(1357) for the Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 01/02/2022
ORAL ORDER
1. With the consent of the learned advocates for the respective
parties, the matter is taken up for final disposal.
2. Issue Rule, returnable forthwith. Ms.Asmita Patel, learned
Assistant Government Pleader waives service of notice of Rule on
behalf of the respondent nos.1 to 3 and Ms.Vadodaria, learned
advocate waives service of notice of Rule on behalf of the
respondent no.4.
3. The petitioner has preferred the captioned writ petition, inter
alia, under Article 226 of the Constitution of India, praying for
quashing and setting aside the order dated 28.06.2018 passed by
the City Survey Superintendent, Surendranagar in Jilla Swagat
Karyakram. The petitioner also prays to quash and set aside the
notice and action under Section 202 of the Gujarat Land Revenue
Code, 1879 (hereinafter referred to as the "Code") issued by the
respondent no.2 - City Survey Superintendent, Limdi.
4. Tersely stated are the facts.
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5. Vide Lekh No.101 dated 02.03.1948, the Government granted
the land to petitioner i.e. Jashwantsinhji Audichya Brahman
Vidhyarthi Mandal (hereinafter referred to as "the Mandal"),
followed by execution of the registered sale deed on 11.12.1952
and was assigned as Lekh No.101-A. According to the Mandal, the
land comprising under the said sale deed was also containing
Harihareshwar Mahadev Temple (hereinafter referred to as "the
Temple") in the center and as a result whereof, the sale deed was
containing the recitals and requiring the recipient to keep open the
space surrounding the Temple with a further stipulation that there
should not be any obstacle in the way from the main gate to the
Temple. According to the petitioner, the space is left open even
today; however, the poojari of the Temple had constructed a room
in the margin area of the open space for expansion of his residence
which led to filing of the civil suit by the trustee of the Mandal. The
said suit came to be decreed and the poojari of the Temple was
directed to remove the construction on the east - north side of the
Temple. The proceedings were initiated in succession by way of an
appeal which was dismissed. The Second Appeal was filed before
this Court which also came to be dismissed.
6. It was during the pendency of the Regular Civil Suit, the
poojari of the Temple, since had an axe to grind against the Mandal,
submitted an application to the Collector, inter alia, raising the
grievance that the Mandal, without obtaining prior permission from
the Collector, has put up the construction of six rooms and thereby,
there is a breach of conditions of the grant order. A request was also
made to take action. Considering the application of the poojari of
the Temple, the Collector initiated proceeding under Section 79A of
the Code and ultimately, passed an order dated 31.07.1992
declaring that the construction of six rooms by the Mandal is without
prior permission and therefore, passed an order to remove the
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construction. The Mandal being aggrieved, filed an appeal before
the Gujarat Revenue Tribunal (hereinafter referred to as "the
Tribunal") which came to be dismissed and therefore, the Mandal
had preferred a writ petition being Special Civil Application No.6519
of 2005. This Court, on 06.05.2005, had passed an order giving
liberty to the Mandal to make an application to the District Collector
for allowing the offending construction to be regularized by granting
post facto permission; with a further direction to consider the
application in light of the observations made by this Court in the
said judgment and in accordance with law. The writ petition being
Special Civil Application No.6519 of 2005 came to be finally
disposed of by this Court vide common CAV judgment dated
11.03.2015. This Court, while dismissing the writ petition, confirmed
the order dated 29.11.2004 passed by the Tribunal and order dated
31.07.1992 passed by the Collector, Surendranagar.
7. The Mandal, being aggrieved, preferred Letters Patent Appeal
No.512 of 2015 which came to be withdrawn on 08.07.2015 as it
wanted to file a review application before the learned Single Judge.
The Mandal submitted Misc. Civil Application No.2248 of 2015 for
review/recall of the common CAV judgment dated 11.03.2015 which
came to be rejected. The Mandal thereafter, preferred Letters
Patent Appeal No.1448 of 2015 against the order rejecting the
review application. As is discernible from the record, Letters Patent
Appeal No.1448 of 2015 in Misc. Civil Application No.2248 of 2015 in
Special Civil Application No.6519 of 2005 came to be rejected as not
maintainable in view of the decision of the Apex Court in the case of
Bussa Overseas and Properties Private Limited vs. Union Bank of
India reported in (2016) 4 SCC 696. In the interregnum, the Mandal
had preferred Letters Patent Appeal No.1080 of 2017 challenging
the common CAV judgment dated 11.03.2015. The preliminary
objection was raised by the contesting respondent against the
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maintainability of the said Letters Patent Appeal No.1080 of 2017, in
view of the unconditional withdrawal of the Letters Patent Appeal
No.512 of 2015 as the Letters Patent Appeal No.512 of 2015 was
withdrawn without reserving any liberty to prefer the appeal afresh.
The said preliminary objection was raised in view of the decision of
the Apex Court in the case of Vinod Kapoor vs. State of Goa
reported in (2012)12 SCC 378. The Division Bench dismissed the
Letters Patent Appeal as the Mandal had preferred Misc. Civil
Application (For Recall) No.1 of 2017 together with Civil Application
(for Condonation of Delay) No.1 of 2018 for review of the order
dated 08.07.2015 passed in Letters Patent Appeal No.512 of 2015.
The said Misc. Civil Application No.1 of 2017 has been recently
dismissed by the Division Bench observing that as per the order
dated 08.07.2015, the learned advocate for the appellant sought for
leave of the Court to withdraw the Letters Patent Appeal with liberty
to file a review application before the learned single Judge and the
same was permitted, as prayed for. The Division Bench did not find
any reason to review/recall of the order, the review application, as
aforesaid, came to be dismissed on 09.06.2021.
8. In the interregnum and more particularly, after passing of the
order dated 05.10.2017 in Letters Patent Appeal No.1080 of 2017, a
notice dated 19.02.2018 came to be issued by the office of the City
Survey Superintendent, requiring the Mandal to remove the
offending construction within two days from the date of receipt of
such notice. Pursuant to the notice dated 19.02.2018 issued by the
office of the City Survey Superintendent, Limdi, the Mandal
submitted a detailed reply dated 09.03.2018, followed by another
reply dated 06.06.2018. In the said reply, the Mandal has made an
averment that the matter is pending before the High Court and
steps for removing the offending construction shall be differed and
decision be taken for granting post facto permission pursuant to the
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order dated 06.05.2005 passed by the High Court. The Mandal
averred that it had submitted an application for review of the order
dated 08.07.2015 passed in Letters Patent Appeal No.512 of 2015,
which is pending consideration. It has also been averred that even if
the issue has been crystallized, no steps can be taken as per
Section 79A of the Code and also that, no order can be passed to
remove the construction on the land of the ownership of the Mandal.
The Mandal has also stated that in view of the pendency of the
application for recall, there arises no question of determining the
ownership as well as jurisdiction and therefore, the authorities were
requested not to proceed further for implementing the notice under
Section 202 of the Code. Another notice dated 28.06.2018 came to
be issued by the office of the City Survey Superintendent,
Surendranagar in the programme of District Complaint Redressal
and the Mandal was required to remove the illegal construction
within the stipulated time. Being aggrieved, the Mandal has
preferred the captioned writ petition with the aforementioned
prayers.
9. The respondent No.4 has also filed a reply. The grievance is
raised that the Mandal has purchased the land admeasuring 26125
sq.mtrs. and pursuant whereof, a Lekh dated 11.12.1952 was issued
granting land to the Mandal. According to the respondent No.4, the
Lekh was executed, incorporating various conditions and one of the
conditions was that the public way to the Temple should not be
blocked and no construction in front of the other mess should be
made. According to the respondent No.4, in the year 1963, the
Mandal had made construction of six rooms on Eastern side in
breach of the conditions stipulated in the Lekh dated 11.12.1952.
The grievance of the respondent No.4 is that the construction is not
only causing prejudice to the Temple but also, the visitors, visiting
the Temple for worship and prayers. The Collector was accordingly
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informed about the breach of condition which culminated into Case
No.3/A-525-3090 against the Mandal which led to passing of the
order dated 04.10.1985. The order was challenged before the
Additional Chief Secretary (Appeals) under Section 211 of the Code,
who, vide order dated 27.04.1988, remanded the matter back to the
Collector, quashing and setting aside the order dated 04.10.1985. In
the remand proceedings, the Collector had passed an order dated
31.07.1992 after hearing all the concerned parties, holding that the
construction of six rooms and wall was without permission and
hence, illegal. Direction was also issued to the Mandal to remove
the construction of wall as well as rooms. The order was challenged
before the Tribunal which also came to be dismissed on 29.11.2004.
10. The respondent No.4 has also indicated the proceedings
arising out of the order of the Tribunal before this Court being
Special Civil Application No.6519 of 2005, dismissal of the same;
Letters Patent Appeals filed by the Mandal before this Court against
the common CAV judgment dated 11.03.2015; withdrawal of the
same; filing of the review application and appeal against the review
application. By indicating the proceedings before this Court, it is
stated that despite there being dismissal of the proceedings in
succession by this Court, the Mandal has willfully and deliberately
not removed the illegal construction and, as of today also, the
construction is in breach and without prior permission, as stipulated.
It is submitted that as a result of the proceedings crystallized before
this Court that, the notices were issued by the office of the City
Survey Superintendent, dated 19.02.2018; 12.03.2018; 20.04.2018
and lastly on 28.06.2018. It is also the stand of the respondent No.4
that the Mandal has also filed replies. It is averred that as is
discernible from the communication dated 28.06.2018, the Mandal
has been given opportunity of hearing by the Collector and in
absence of any order, staying the action of removal of illegal
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construction, the Mandal was required to remove the construction;
however, it had filed the captioned writ petition, suppressing
material facts and persuading this Court to grant interim protection.
It is urged that in view of the proceedings having been culminated
into passing of the order, the present writ petition deserves to be
interfered with and be rejected.
11. Mr.P.S. Champaneri, learned advocate for the petitioner, while
inviting attention of this Court to the Lekh, submitted that the land
also contained the Temple in the center and as per the stipulation,
the Mandal was obliged to keep the space open which is still kept
open. It is submitted that the Mandal had raised the grievance
against the poojari of the Temple of putting illegal construction of
wall and rooms and as a result whereof, the poojari had to remove
the construction and out of vengeance, he had filed a false
complaint before the Collector that the Mandal has put up the
construction of six rooms in breach of the conditions of the Lekh.
While inviting attention to the sketch, it is submitted that even as of
today, there is sufficient open space maintained from the Temple
and that, no obstacle is there in using the open space. It is
submitted that apropos the application filed by the poojari, the
proceedings were initiated by the Collector, which culminated into
passing of the order dated 31.07.1992 holding that the construction
of six rooms is in breach of the conditions stipulated in the Lekh as
no prior permission has been taken by the Mandal. It is also
submitted that the Mandal had filed a writ petition being Special
Civil Application No.6519 of 2005 wherein, this Court, while granting
the interim protection, has clearly granted stay against the
impugned order of demolition of construction on condition that the
Mandal shall comply with the statement for removal of the
construction shown in the sketch. It is submitted that the Collector,
with the help of the CEPT, was also directed to examine the
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premises and produce the report and to explore possibility for
reduction of wall A-B to 45 degree. It is submitted that what was
relevant, was the direction in paragraph 9 whereby, it was left open
to the Mandal to make an application for regularization or by way of
grant of post facto permission. While the permission was given to
the Mandal, the respondent authorities were also directed to
consider the same in accordance with law. It is submitted that
though there was a specific direction, the respondent has not
considered the application and rejected the same.
11.1. It is submitted that a notice dated 19.02.2018 was issued by
the City Survey Superintendent, calling upon the Mandal to remove
the construction of six rooms put up without the permission. The
Mandal has initially lodged its objection, as prescribed under the
provisions of Section 202 of the Code and thereafter, another notice
was issued without considering the objection and hearing the
Mandal. It is submitted that till the month of June, 2018, the
communications were exchanged. The Collector, during some
programme, on 28.06.2018, without notice and offering any
opportunity of hearing to the Mandal, unilaterally passed an order
directing removal of the construction of six rooms on or before
30.07.2018. Apropos the order, the office of the City Survey
Superintendent has issued final notice dated 28.06.2018 requiring
the Mandal to remove the construction of six rooms. It is submitted
that the said notice dated 28.06.2018 is based on the decision
rendered by the Collector which would be in exercise of the powers
under Section 202 of the Code, without hearing so also, without
deciding the objections and obstructions raised against the
enforcement of the order passed under the provisions of Section
79A of the Code. It is submitted that the scheme contained in
Section 202 of the Code envisages opportunity to be given and in
case, the obstructions or objections are filed, the same have to be
C/SCA/11594/2018 ORDER DATED: 01/02/2022
decided by adjudicating the same and no order could have been
passed by the District Collector and therefore, the said order is
contrary to the scheme of Section 202 of the Code.
11.2. It is also submitted that the proceedings under Section 202 of
the Code are of quasi-judicial in the form of execution and/or
enforcement of the order either under Section 61 or under Section
79A of the Code and therefore, no execution proceedings could
have been dealt with by the Collector in the programme and that
too, without hearing the Mandal. In support of such contention,
reliance is placed on the judgment in the case of Pethabhai
Naranbhai Galchar vs. State of Gujarat reported in 2017 (2) GCD
970. It is submitted that this Court has referred to the judgment in
the case of Government of Gujarat vs. Amraji Motiji Thakor reported
in 1991 (2) GLH 606 wherein, it has been held that a notice under
Section 202 of the Code, does not in itself account to a decision or
order of eviction of a person wrongfully in possession of land, but is
only a mode of enforcement of such decision or order recorded
under the substantive provisions of the Code or any other Act
conferring power on the Collector to evict the person. It has been
held that the provision under Section 202 of the Code also makes it
clear that it prescribes the method and manner in which, eviction
shall be made. It is submitted that this Court has held and observed
that in absence of any notice under Section 202 of the Code, no
steps can be taken by directly conducting panchnama based on the
order passed in exercise of powers under Section 61 or Section 79A
of the Code, as the case may be. It is therefore, submitted that the
manner of enforcement of the order either under Section 61 or
Section 79A of the Code and the controversy on the scope of the
eviction proceedings under Section 202 of the Code has been
decided by this Court in the said case. It is submitted that therefore,
the principle of natural justice has to be followed in the case of
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resistance or obstruction while taking possession or removing the
construction.
11.3. It is submitted that a bare reading of the provisions under
Section 202 of the Code makes it clear that it prescribes the method
and manner in which, eviction shall be made and in case the
obstruction is raised, no steps can be taken for removal of the
obstruction of the construction directly by the officer and therefore,
the decision of the Collector and/or City Survey Superintendent is
illegal and deserves to be quashed and aside. It is also submitted
that it is undisputed fact that Lekh is executed by the Mamlatdar
and the Collector by way of the sale deed on payment of
consideration by the Mandal. Such Lekh has been registered under
the provisions of the Registration Act and being a sale, executed by
the registered document on payment of consideration, the
provisions of Section 79A of the Code have no application and
therefore, the order said to have been passed by the Collector under
Section 79A in the year 1992, is illegal and without jurisdiction and
therefore also, no action could have been initiated under Section
202 of the Code. It is further submitted that the notice under
Section 202 of the Code is without jurisdiction and without authority
at law and could not be enforced or executed, it being nullity. The
said contention ought to have been decided by the authority and
therefore, in absence of any decision being rendered, the objection/
obstruction raised in the reply dated 09.03.2018, no order could
have been passed either on 28.06.2018 or during the programme by
the Collector. It is therefore, urged that the notice/order dated
28.06.2018 passed by the Collector/City Survey Superintendent is
illegal, bad, without jurisdiction and deserves to be quashed and set
aside.
12. Ms.Sangeeta Pahwa, learned advocate for the respondent
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No.4 has submitted along the lines of the reply. It is submitted that
the land in question has been granted vide Lekh No.101 dated
02.03.1948 and on the eastern side of the land, there is a temple. It
is submitted that the Lekh was executed and it contained a specific
condition that the public way to the temple should not be blocked
and no construction in front of the other mess should be made. It is
submitted that disregarding the said condition, the Mandal has
made a construction, not only causing obstacle in the way of the
Temple but also, to the persons visiting the Temple for offering
prayers.
12.1. It is submitted that since there was a breach, the Collector
initiated the proceedings while passing the order dated 04.10.1985.
It is submitted that in the remand, the Collector has passed the
order dated 31.07.1992 after hearing all the parties concerned and
holding that the construction of six rooms and wall is without
permission and illegal, consequently, the directions were issued to
remove the construction.
12.2. It is submitted that the petitioner, being aggrieved, preferred
a revision application before the Tribunal which was dismissed
against which, the petitioner has preferred a writ petition before this
Court being Special Civil Application No.6519 of 2005. It is
submitted that the said writ petition came to be dismissed on
11.03.2015 and thereby, order dated 29.11.2004 passed by the
Tribunal and order dated 31.07.1992 passed by the Collector stood
confirmed. It is submitted that the petitioner has filed Letters Patent
Appeal No.512 of 2015 which came to be dismissed as withdrawn,
followed by filing of Misc. Civil Application No.2248 of 2015, seeking
review of the judgment and order, which also came to be dismissed
on 16.10.2015. It is submitted that the petitioner had filed Letters
Patent Appeal No.1448 of 2015 which came to be dismissed.
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Another Letters Patent Appeal No.1080 of 2017 filed against the
common CAV judgment dated 11.03.2015 also was dismissed as
much as, Letters Patent Appeal No.512 of 2015 was withdrawn by
the Mandal. It is submitted that after dismissal of Letters Patent
Appeal No.1080 of 2017, the Mandal had preferred a review
application in Letters Patent Appeal No.512 of 2015 and as recent as
in the month of June, 2021, the said Misc. Civil Application (For
Recall) also came to be dismissed. It is therefore, submitted that the
proceedings stood crystallized against the Mandal and therefore,
nothing is left for the Mandal to make any grievance and defend its
action.
12.3. It is also submitted that despite the order is passed by the
Collector, directing removal of the illegal construction of six rooms
and wall, which has been confirmed upto the Division Bench of this
Court, the Mandal has an audacity not to remove the unauthorized
construction and only with a view to buy time, has challenged the
notice dated 28.06.2018. The Mandal cannot lay a challenge to such
notice inasmuch as, the notices have been issued by the office of
the City Survey Superintendent in compliance of the order passed
by this Court and therefore, also, the present petition may not be
entertained. It is submitted that reliance placed on the judgment in
the case of Pethabhai Naranbhai Galchar (supra) is misplaced. It is
also submitted that the principles laid down by the Division Bench of
this Court do not help the case of the petitioner but, help the case of
the respondents. It is submitted that in sub-para (2) of paragraph 7,
the Division Bench has categorically held that the question of
application of the principles of natural justice at the stage of issuing
notice under Section 202 of the Code does not arise. It has also
been held that the principles of natural justice would be applicable
at the stage of recording the decision or order to evict in case of
exercise of powers by the Collector under Section 61 or Section 79A
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of the Code, which are some of the substantive provisions conferring
powers on the Collector. It has also been held that summary inquiry
contemplated by the latter part of Section 202 is not meant for
reaching or recording a decision or order of eviction and it applies to
the contingency of resistance or obstruction in taking possession of
land, in the course of enforcement of a decision or order to evict,
made under some of the provisions of the Code. It is submitted that
when the Collector has already passed an order in the year 1992
which was unsuccessfully challenged before this Court and
confirmed, the said contention and argument is not available to the
Mandal. It is therefore, submitted that when in the earlier round of
litigation, proceedings against the Mandal have been crystallized,
the present writ petition may not be entertained.
13. Ms.Asmita Patel, learned Assistant Government Pleader while
adopting the submissions made by Ms.Sangeeta Pahwa, learned
advocate for respondent No.4, submitted that in view of the
proceedings initiated by the Mandal before this Court and they
having been culminated against the Mandal, it cannot maintain the
present writ petition. It is also submitted that so far as the
contention of the Mandal about giving opportunity of hearing to it is
concerned, the same is also misplaced inasmuch as, section 202 of
the Code does not envisage/contemplate any hearing in view of the
settled proposition of law by this Court in the case of Pethabhai
Naranbhai Galchar (supra). It is submitted that the present writ
petition is a second round of litigation by the Mandal, only with a
view to stalling the removal of the construction on the grounds
raised which are not available to it. It is submitted that after the
judgment in the Letters Patent Appeal, notice dated 19.02.2018 was
issued to which, the Mandal has filed the reply, thereafter, once
again, another notice dated 12.03.2018 to which, the Mandal has
also filed reply and lastly, notice dated 28.06.2018 was issued,
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requiring the Mandal to remove the construction and therefore,
there was sufficient compliance on the part of the respondent
authorities in taking action and such action does not warrant any
interference; hence, the present petition be dismissed without grant
of any relief.
14. Heard the learned advocates for the respective parties and
considered the documents available on record.
15. The petition is filed essentially on two grounds, namely, (i)
holding and declaring the exercise of powers in the matter of
issuance of the order under Section 79A of the Code by the Collector
with respect to the land in question without jurisdiction and; (ii) that
the principles of natural justice has to be followed in the case of
resistance or obstruction while taking possession or removing the
construction. The said two grounds are required to be tested on the
anvil of the following factual backdrop. The facts in detail are
already set out in the preceding paragraphs; however, few facts
which go to the root of the matter, are as under.
16. The Mandal has been allotted the land vide Lekh No.101 dated
02.03.1948/08.03.1948, incorporating conditions and as per one of
the conditions, the Mandal was obliged to keep open the space
admeasuring 17397 sq.fts. It contained the restriction that public
way to the Temple should not be blocked and no construction in
front of the other mess should be carried out. As is discernible from
the record, the six rooms were constructed without any prior
permission which gave rise to a complaint by the respondent No.4,
being a poojari of the Temple. The proceedings were initiated for
breach of the conditions against the Mandal which led to passing of
the order dated 31.07.1992 under Section 79A of the Code, holding
that the construction of six rooms by the Mandal is without prior
permission. Accordingly, the Mandal was directed to remove the
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construction. The order dated 31.07.1992 passed by the Collector,
Surendranagar came to be challenged before the Tribunal, who,
vide order dated 29.11.2004, rejected the revision application and
confirmed the order dated 31.07.1992 passed by the Collector.
Being aggrieved, the Mandal preferred a writ petition being Special
Civil Application No.6519 of 2005. This Court has passed an interim
order dated 06.05.2005 whereby, the stay was granted against the
order of demolition of the construction on condition that the Mandal
shall remove the construction, as agreed. The Mandal was also
given a liberty to move the District Collector and/or State
Government allowing the Mandal to retain the construction after
removal of the construction shown in the map by way of
regularization or by way of grant of post facto permission. The said
writ petition was finally heard by this Court and vide common CAV
judgment dated 11.03.2015, the petition came to be dismissed.
17. In the writ petition, contention was raised on behalf of the
Mandal as regards non-applicability of the provisions of Section 79A
of the Code. The contention was also to the effect that in view of the
document being a registered deed, the occupation of the Mandal
cannot be said to be unauthorized. The Mandal has also raised a
contention that the action on the part of the respondent authority is
in breach of the principles of natural justice for, no hearing or notice
was given to the Mandal. Paragraphs 4.1 to 4.3 of the CAV judgment
read thus:-
"4.1 He further submitted that provisions of Section
79A of the Act has no application in the facts of the
present case as the said powers are vested with the
Collector to summarily evict a person, who is
unauthorizedly and wrongfully occupying and
possessing any land. According to him, in view of
document No.1830 of 1948, it cannot be said that
occupation is unauthorized and possession of the
subject land is wrongful.
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4.2 He further submitted that the impugned action is also in
breach of the principles of natural justice since no hearing or
notice was given to the petitioner before making a visit of the
premises by the Collector. He further submitted that both the
Collector and the learned Tribunal have misread the document
inasmuch as there is no complete bar to make construction.
4.3 He further submitted that application to grant post facto
permission/regularization of the illegal construction in
pursuance of interim order passed by this Court was rejected
by the Collector without application of mind."
As against the said contention, the case of the respondents
was also to the effect that the provisions of Section 79A of the Code
squarely apply to the case in view of the fact that the document of
1948 prevented the Mandal to make any construction and if any
construction is made, would be illegal and unauthorized. Paragraph
6.1 of the CAV judgment reads thus:-
"6.1 He further submitted that the provisions of
Section 79A of the code squarely apply to the present
cases in view of the fact that the document of 1948
prevented the petitioners to make any construction
and therefore, the construction made by the
petitioners is illegal and unauthorized."
18. This Court, after considering the submissions made by the
respective parties, vide CAV judgment dated 11.03.2015, held and
observed that the land was granted to the Mandal vide Lekh No.101
dated 02.03.1948 on condition that the public way to the Temple
should not be blocked and no construction should be made on the
definite portion of the land indicated therein. This Court was also of
the opinion that the constructions were made by the Mandal
creating obstacles in the way of the people visiting the Temple and
thereby, there was a breach of the condition of the Lekh. It has been
categorically held that there is a breach of the provisions of Section
79A of the Code and therefore, the construction made by the
Mandal is illegal. This Court also held and observed that ample
opportunities were afforded to the Mandal before passing the
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impugned order by issuing show cause notice and hence, the
principles of natural justice were properly followed. It has also been
recorded that the request made by the petitioner for grant of post
facto approval was rejected by the Collector. Paragraph 8 of the CAV
judgment reads thus:-
"8. It is to be noted that so far as petitioner-
Jaswantsinhji Audichya Brahmin Boarding Trust i.e.
Special Civil Application No.6519 of 2005 is concerned,
the land was granted to the petitioner by the then
Government of Saurashtra vide document No.101
dated 2.3.1948 on conditions that public way to Shri
Hareshwar Mahadev Temple should not be blocked and
no construction should be made on definite portions of
the land mentioned therein. However, constructions
were made by the petitioner on the land creating
hindrance to the people visiting the temple and thereby
making a breach of the condition of the LEKH referred
hereinabove. It was contended by the petitioner that
permission was obtained from Limbdi Nagarpalika
before making construction though nothing has come
on record to substantiate said contention, however, it is
to be noted that land was granted by the Government
and hence, no permission could have been given by
Limbdi Nagarpalika. Even if permission was granted,
said permission would not serve the purpose as the
land was granted by the Government. Thus, there is a
breach of provisions of Section 79A of the code and
therefore, the construction made by the petitioner of
Special Civil Application No.6519 of 2005 was and is
illegal."
19. This Court did not interfere with the order dated 31.07.1992
passed by the Collector so also, the order dated 29.11.2004 passed
by the Tribunal. Explicitly, the contention of non-applicability of the
provisions of Section 79A of the Code was specifically raised and has
been rejected by this Court while dismissing the writ petition.
20. While challenging the action of issuance of notice dated
28.06.2018 by the office of the City Survey Superintendent, the
Mandal in the captioned writ petition in paragraph 17, has raised
specific contention that;
C/SCA/11594/2018 ORDER DATED: 01/02/2022
"it is undisputed fact that a Lekh no.101 is executed
by the Mamlatdar and the Collector, Zalavad, by way
of the sale deed on payment of consideration by the
petitioner trust. Said sale under Lekh no.101 has been
registered under the provisions of the Indian
Registration Act. Since it is sale executed by
registered sale deed on payment of consideration, the
provisions of section 79A has no application and,
therefore, the order said to have been passed by the
Collector under section 79A of the Code, way back in
1992, is ex-facie nullity and without jurisdiction and
that, therefore, no action could have been initiated
under section 202 of the Code by the Collector and
such dispute has been raised while replying the
original notice dated 19.02.2018 - Annexure-A, as can
be seen from the reply submitted to the said notice
on 09.03.2018."
21. As noted hereinabove, the said contention was very much
raised before the learned single Judge and has been turned down
and therefore, it would not be permissible to the Mandal to once
again raise such contention in support of its challenge to the notice
dated 28.06.2018 issued by the office of the City Survey
Superintendent. Moreover, against the common CAV judgment
dated 11.03.2015, the Mandal had preferred Letters Patent Appeal
No.512 of 2015 and withdrew the same as the Mandal was desirous
of filing a review application before the single Judge. It is further
discernible from the record that the Mandal has preferred Misc. Civil
Application No.2248 of 2015 which came to be rejected and
therefore, it had preferred Letters Patent Appeal No.1448 of 2015.
Simultaneously, the Mandal also preferred Letters Patent Appeal
No.1080 of 2017 against the CAV judgment dated 11.03.2015.
22. So far as Letters Patent Appeal No.1448 of 2015 is concerned,
the respondent No.4 raised preliminary objection as regards
maintainability, relying upon the judgment of the Apex Court in the
Case of Bussa Overseas and Properties Private Limited (supra). In
C/SCA/11594/2018 ORDER DATED: 01/02/2022
view of the said preliminary objection, the Division Bench dismissed
Letters Patent Appeal No.1448 of 2015 as not maintainable.
Subsequently, Letters Patent Appeal No.1080 of 2017 also came to
be dismissed. In the said Letters Patent Appeal, objection was raised
by and on behalf of the respondent No.4 that against the CAV
judgment dated 11.03.2015, Letters Patent Appeal No.512 of 2015
was preferred which was withdrawn without reserving any liberty to
prefer an appeal afresh. In support of such objection, reliance was
placed on the judgment in the case of Vinod Kapoor (supra). The
Division Bench of this Court was of the opinion that in view of earlier
Letters Patent Appeal No.512 of 2015 having been withdrawn
without reserving any liberty to file fresh appeal, the present appeal
would not be maintainable. The Mandal, in the said proceedings,
also reported that the review application has been filed in Letters
Patent Appeal No.512 of 2015 considering the principles laid down
by the Apex Court in the case of Vinod Kapoor (supra).
23. The Mandal had preferred Misc. Civil Application (For Recall)
No.1 of 2017 in Letters Patent Appeal No.512 of 2015, copy
whereof, is placed on record (page 68). The said application was
filed for revival of the Letters Patent Appeal and one of the grounds
raised was to the effect that question of jurisdiction and authority to
assume the powers under Section 79A of the Code, though was not
available to the Collector, it has exercised the powers and therefore,
no order could have been passed in exercise of the powers under
Section 79A of the Code. Paragraph 4 reads thus:-
"4. The applicant state and submit that the applicant
had withdrawn the abovementioned Letters Patent
Appeal No.512 of 2015 as the question of jurisdiction
and authority to assume powers u.s. 79A of the
Bombay Land Revenue Code, though was not available
to the Collector, therefore no order in exercise of
powers u.s. 79A could had been passed by the
Collector. Since the said question was not decided by
C/SCA/11594/2018 ORDER DATED: 01/02/2022
the Hon'ble Court while deciding Special Civil
Application No.6519 of 2005 in it's judgment and order
dated 11.03.2015 and since the liberty was not
reserved to revive the appeal or to file a fresh appeal
and as the contention and the decision on the question
goes to the route of scope of appeal and in furtherance
of the ends of justice. The applicant therefore most
humbly prays to this Hon'ble Court to revive Letters
Patent Appeal No.512 of 2015 in the interest of justice
and to secure the ends of justice."
24. Clearly, the review application was filed in Letters Patent
Appeal No.512 of 2015 raising the contention that no order in
exercise of powers under Section 79A of the Code could have been
passed by the Collector. The said contention was not only raised
before the learned single Judge in the writ petition being Special
Civil Application No.6519 of 2005 but also, in the Misc. Civil
Application (For Recall) of the order dated 08.07.2015 passed in
Letters Patent Appeal No.512 of 2015. Pertinently, the Division
Bench of this Court has passed the order dated 09.06.2021
whereby, Misc. Civil Application (For Recall) No.1 of 2017, seeking
review and recall of the order dated 08.07.2015, has been dismissed
and therefore, the proceedings have been crystallized against the
Mandal. So far as the contention that the exercise of powers in the
matter of issuance of the order under Section 79A of the Code by
the Collector in respect of the title and property of the Mandal is
concerned, is without jurisdiction; the said contention raised by
learned advocate Mr.P.S. Champaneri therefore, does not merit
acceptance and is hereby rejected.
25. Adverting to the another contention that no action could have
been initiated under Section 202 of the Code by the Collector
inasmuch as, notice under Section 202 of the Code is without
jurisdiction and without authority at law which could not be enforced
or executed, it being a nullity, such contention is also to be decided
against the Mandal for the reasons discussed hereinbelow.
C/SCA/11594/2018 ORDER DATED: 01/02/2022
26. As stated hereinabove, after the common CAV judgment
dated 11.03.2015, the Mandal has preferred Letters Patent Appeal
No.1080 of 2017 challenging the said judgment which came to be
dismissed by order dated 05.10.2017. Thereafter, the respondent
No.4 submitted an application dated 17.11.2017 to the District
Collector, inter alia, pointing out that after the judgment, it is
incumbent upon the Mandal to remove the constructions, more
particularly, in absence of any stay granted by the Court. The
respondent No.4 requested the Collector to take necessary steps for
removal of the illegal construction and implement the CAV judgment
dated 11.03.2015 passed in Special Civil Application No.6519 of
2005. On 24.01.2018, the office of the Mamlatdar had addressed a
communication to the office of the City Survey Superintendent
requesting it to take necessary steps for removal of the illegal
construction in view of the dismissal of the Letters Patent Appeal
No.1080 of 2017. Several applications were filed by the respondent
No.4 reiterating its request.
27. The office of the Collector once again, on 02.04.2018,
addressed a communication to the Mamlatdar, requiring him to take
necessary steps, who, in turn, addressed the communication to the
office of the City Survey Superintendent, Surendranagar. As a result
whereof, the office of the City Survey Superintendent addressed a
communication dated 14.05.2018 to the Collector with a copy
endorsed to the Mandal as well as respondent No.4. It appears that
the Mandal, thereafter, submitted its reply raising the objection and
asking the office of the City Survey Superintendent to withdraw
notice dated 14.05.2018. The Mandal has also pointed out that it
has filed a Misc. Civil Application for review of the order dated
08.07.2015 passed in Letters Patent Appeal No.512 of 2015. The
Mandal cautioned to postpone the proceedings, failing which, it
would be compelled to initiate the proceedings of contempt.
C/SCA/11594/2018 ORDER DATED: 01/02/2022
28. Perceptibly, the office of the City Survey Superintendent
issued notices dated 12.03.2018, 20.04.2018, 14.05.2018 and
28.06.2018. The Mandal has also filed replies dated NIL; 06.06.2018,
inter alia, informing that in view of the pendency of the Misc. Civil
Application for review of the order dated 08.07.2015 passed in the
Letters Patent Appeal, action be not taken against the Mandal. In
the replies, the Mandal has requested for not taking action citing the
pendency of the Misc. Civil Application for recall and review of the
order dated 08.07.2015. Therefore, the sole ground raised was
pendency of Misc. Civil Application (For Recall). The said review
application, as aforesaid, also came to be dismissed by the Division
Bench of this Court vide order dated 09.06.2021 and therefore, the
ground on which, the Mandal was asking the authorities not to take
action, also does not survive.
29. Reliance placed by learned advocate Mr.Champaneri for the
Mandal in the case of Pethabhai Naranbhai Galchar (supra) also
does not assist the case. The issue before the Division Bench was as
regards the scope and nature of the powers under Section 202 of
the Code. The Division Bench has referred to the judgment in the
case of Government of Gujarat vs. Amraji Motiji Thakor (supra). In
the said case, the Full Bench of this Court has held and observed
that the question of application of the principles of natural justice at
the stage of issuance of notice under Section 202 of the Code does
not arise. It has also been held that the principles of natural justice
would be applicable at the stage of recording the decision or order
to evict in case of exercise of powers by the Collector under Section
61 or 79A of the Code which are the substantive provisions. The
Division Bench further held that the notice under Section 202 of the
Code itself does not amount to a decision or order of eviction to
evict a person wrongfully in possession of the land but, is only a
mode of enforcing such decision or order recorded by the authority
C/SCA/11594/2018 ORDER DATED: 01/02/2022
to evict such person. The Division Bench, in paragraph 7, has held
and observed thus:-
"7. In the judgment in the case of Government of
Gujarat vs. Amraji Motiji Thakor & Anr, reported in 1991
(2) GLH 606, full Bench of this Court has answered the
references as under:-
"(1) A notice under Section 202 of the Bombay Land
Revenue Code does not in itself account to a
decision or order of eviction of a person wrongfully
in possession of land; but is only a mode of
enforcement of such decision or order recorded
under the substantive provisions of the Code or any
other Act for the time being in force conferring
power on the Collector to evict such person.
(2) In view of the above conclusion, the question of
application of principles of natural justice at the stage
of issuing notice under Section 202 does not arise. It
is made clear, however, that the principles of natural
justice would be applicable at the stage of recording
the decision or order to evict in case of exercise of
power by the Collector under Section 61 or 79A of the
Code which are some of the substantive provisions in
the Code conferring such power on the Collector
(3) The summary enquiry contemplated by the latter
part of Section 202 is not meant for reaching or
recording a decision or order of eviction. It applies to
the contingency of resistance or obstruction in taking
possession of land, in the course of enforcement of a
decision or order to evict made under some provision
of the code such as Section 61 or 79A or any other Act
for the time being in force empowering the Collector
to evict a person wrongfully in possession of land."
30. Therefore, in view of the aforesaid principle, the contention
raised by the Mandal in support of the challenge to the notice dated
28.06.2018 that the decision in exercise of powers under Section
202 of the Code, without hearing the Mandal or without offering an
opportunity to the Mandal so also, without deciding the objection
and obstructions raised against the enforcement of the order is
unjust and improper, cannot be accepted.
C/SCA/11594/2018 ORDER DATED: 01/02/2022
31. In view of the proceedings before this Court challenging order
dated 31.07.1992 having been concluded against the Mandal, this
Court is of the opinion that no error has been committed by the
respondents while issuing notice dated 28.06.2018, requiring the
Mandal to remove the construction. Hence, the prayer of the
Mandal, seeking quashing and setting aside the notice dated
19.02.2018 as well as communication dated 28.06.2018 cannot be
entertained. The prayer seeking direction to hold and declare the
exercise of powers of issuance of the order under Section 79A of the
Code, being without jurisdiction, also cannot be accepted and is
hereby rejected.
32. Accordingly, the present writ petition is dismissed. Rule is
discharged. No order as to cost.
Interim relief stands vacated.
(SANGEETA K. VISHEN,J)
Hitesh
