Gujarat High Court
Achyut Chinubhai vs State Of Gujarat on 9 June, 2022
Bench: A. P. Thaker
C/SCA/8079/2017 JUDGMENT DATED: 09/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8079 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 8079 of 2017
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 8079 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ACHYUT CHINUBHAI
Versus
STATE OF GUJARAT & 9 other(s)
==========================================================
Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 10,2,3,5,7,8
TANNA ASSOCIATES(1410) for the Respondent(s) No. 6,9
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/06/2022
ORAL JUDGMENT
1. By way of preferring this petition under Article
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226 of the Constitution of India, the petitioner
has challenged the order dated 22.11.2016
passed in Revision Application No.14-2012 by the
learned Special Secretary Revenue Department
(for short "the SSRD") as well as the order dated
31.07.2010 passed by the City Deputy Collector
in City Appeal No.21/2009 and order dated
02.01.2002 passed by the District Collector,
Ahmedabad in Appeal No.310/2010 and has
prayed for the following reliefs.
"A. Admit and allow the present petition.
B. Issue appropriate writ, order or direction
quashing and setting aside the order dated
22/11/2016 passed in Revision No.14 of
2012 by the Special Secretary, Revenue
Department, State of Gujarat as well as
challenge to the order dated 31/07/2010
passed by the City Deputy Collector,
Ahmedabad in TS/Appeal No.21 of 2009 and
order dated 02/01/2002 passed by the
District Collector, Ahmedabad in Appeal
No.310 of 2010;
C. .......;
D. ..........;
E. pass such other and other orders as
thought fit in the interest of justice."
C/SCA/8079/2017 JUDGMENT DATED: 09/06/2022
2. The brief facts giving rise to the present petition
are as under.
2.1. The land forming part of the revenue survey
no.281/1, 282/1/P, 284 paiki 284/2/P and 283/P
land situated in Dariyapur and Kajipur were
owned and occupied by the petitioner and
respondent nos.6 to 10. That on inclusion of the
said area into City Survey Limit, the aforesaid
lands were given city survey nos.7831, 7832,
7833 and 7834 which came to be renumbered as
sub-plot nos.7831/1 to 7831/4. That the said
survey numbers were given final plot no.306/1
admeasuring 28530 square meters of land and
initially Town Planning Scheme came to be
implemented and attained the finality in the year
1971. Thereafter, variation took place in the year
1974 and again the same attained finality.
2.2. That the final plot no.306 paiki land
admeasuring 1188 square meters of land which
was forming part of survey no.306/2 came to be
allotted to the Ahmedabad Municipal
Corporation for the widening of the roads and
survey no.306/1 admeasuring 28,530 square
meters (34,122 square yards) remained with the
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petitioner and the respondent nos.6 to 10.
2.3. That as per the settled proposition of law, once
the town planning attained the finality, the other
provisions of land revenue code would not apply
and the land would have to be given final plot
numbers in the town planning scheme and the
revenue survey numbers would remain
nonexistent. That the names of the petitioner and
respondent nos.6 to 10 were shown in the City
Survey record and the entry came to be certified
on 23.05.2008.
2.4. That the Ahmedabad Municipal Corporation
preferred CTS Appeal No.21/2009. The City
Deputy Collector passed an order dated
31.07.2010 and quashed the order passed by the
City Survey Superintendent, Ahmedabad,
showing the names of the petitioner and
respondent nos.6 to 10. Against that order, the
petitioner preferred an appeal before the
Collector. The Collector vide his order dated
31.07.2010 passed in proceeding no.310/2010
rejected the same. Against the same, revision
was preferred by the petitioner being 14/2012
before the learned SSRD, which was also came to
be rejected. Against this order the petitioner has
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preferred this petition.
3. Affidavit in reply has been filed by one Shri
Bhanukumar N. Chauhan, Estate Officer of the
Corporation. It is contended therein that the part
of the lands were required by the Corporation for
the purpose of the extension of water works at
Dudheshwar and upon following procedure
under the Land Acquisition Act, award was
passed, wherein the petitioner had participated
and received the compensation. It is further
contended that the petitioner having preferred
enhancement for compensation, the same was
allowed and the enhanced amount was deposited
by the Corporation. It is contended that despite
of receiving compensation, while preparation of
promulgation of City Survey Nos. and property
cards, petitioner sought to include their names,
without informing Corporation, in the revenue
records and against which Corporation had
preferred proceedings which were considered by
the authority. It is also contended that amongst
part of the land acquired, while preparing the
Town Planning Scheme, the original plot
no.306/2, at Town Planning Road had been
carved, whereas for the remaining land, right of
the Corporation as well as private owners were
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shown. It is further contended that the lands
were converted to City Survey no.7831/1 to
7831/4 and the same comprising Final Plot
No.306 which had common ownership. It is
further submitted by the Corporation that the
petitioner had requested for earmarking their
areas, which were not acquired i.e. (City Survey
Nos.7831/1 to 7831/3) and request was also
made to grant area for approaching towards the
said land. The request of the petitioner was
acceded and the land was divided into two Final
Plots i.e. 306/1 and 306/2 by aligning boundaries
and merging proportionate area, so as to give
approach, by City Planning Department.
3.1. It is contended that the orders by the authorities
are in due consideration of the records and
details produced by the State Authorities and the
only contentions raised by the petitioners was
with respect to the mutation on the basis of Town
Planning records. It is also contended that the
land was acquired for public purpose and
belongs to the Corporation and even prior to the
filing of the application, Corporation had already
completed structures of the compound wall.
4. Heard learned advocate Mr.N.K.Majmudar for
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the petitioner, learned AGP Mr.Nikunj Kanara for
the respondent State and learned advocate
Mr.Deep Vyas for the respondent no.4 and
learned Senior Counsel Mr.Bhaskar Tanna for
respondent nos.6 to 10 at length. Perused the
material placed on record as well as decisions
cited at bar. The written submissions produced
on behalf of the respondent no.6 to 10 are also
taken into consideration.
5. Learned advocate Mr.N.K.Majumdar for the
petitioner has vehemently submitted that on
implementation of the Town Planning Scheme
under The Gujarat Town Planning and Urban
Development Act, 1976, (For short "the Act")
the allotment of Final Plot No.306 through
publication of F-form and the same had attained
finality and the decision of the Town Planning
Officer of allotment of the Final Plot No.306
would prevail over all the enactments and
therefore, the order of the revenue authorities
are without jurisdiction. He has also contended
that even Ahmedabad Municipal Corporation
would not have any authorities or right to get its
name entered into the records or has no right to
raise any other claim or to ascert any right which
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might have been occurred prior to the
publication of the Act. Mr.Manjmudar has also
submitted that the Ahmedabad Municipal
Corporation has no right title or interest qua the
subject land which has no longer remained
revenue survey numbers land on implementation
of the Town Planning Scheme. He has submitted
that the impugned orders of the revenue
authorities are without jurisdiction and deserves
to be quashed and set aside. He has relied upon
the following authorities and has prayed to allow
the present petition.
5.1. He has relied upon the decision in case of
Motiben Somaji and Others V. State of
Gujarat & Another reported in 1996 (2)
G.L.H. 22.
6. Per contra, learned AGP Mr.Nikunj Kanara for
the respondent State has vehemently supported
the impugned orders of the authorities and has
submitted to dismiss the petition.
7. Learned counsel Mr.Deep Vyas for the
respondent no.4-Corporation has vehemently
submitted that the impugned order of the
C/SCA/8079/2017 JUDGMENT DATED: 09/06/2022
authorities are proper. Learned counsel Mr.Vyas
for the Corporation, while referring to the
various documents placed on record along with
the affidavit in reply, has submitted that the
petitioners have received compensation for their
land in question and land was acquired by the
Corporation after due procedure and the Town
Planning Records itself reflects the ownership
and rights of the Corporation. Mr.Vyas has also
submitted that considering the documents placed
with the affidavit in reply, it clearly establishes
that the Corporation has ownership of the land in
question and the land is in possession of the
Corporation and the order passed by the
Revenue Authorities which are impugned by the
present petitioner are proper and sustainable in
the eyes of law. He has submitted that the initial
order passed by the concerned authority showing
the name of the petitioner and respondent nos.6
to 10 was not legal and valid and therefore
Corporation had filed appeal against that order
which has been rightly upheld by the learned
SSRD. He has also submitted that the decisions
relied upon by the petitioner are not applicable
to the facts of the present case. Learned Counsel
Mr.Vyas has also submitted that the citations
relied upon on behalf of respondent nos.6 to 10
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who are having common interest with the
petitioner, are also not applicable in the present
case.
8. Learned Senior Counsel Mr.Bhaskar Tanna for
the respondent nos.6 to 10 has supported the
submissions of learned counsel Mr.Majmudar for
the petitioner. Learned Senior Counsel has raised
following contentions:-
(i) The City Deputy Collector Ahmedabad, has
ignored various decisions of the Hon'ble Apex
Court as well as Hon'ble High Court.
(ii) It is not in dispute that the plot in question is
covered under the Town Planning Scheme No.14
of Ahmedabad and has reconstituted plot with
Final Plot No.306.
(iii) By the Town Planning Scheme the land
admeasuring 35,543 square yards i.e. 29,718
square meters of Final Plot No.306 was allotted
to the petitioner and respondent nos.6 to 10.
They are the owners and occupiers of the land as
per the order of the Town Planning Officer.
(iv) The Town Planning Scheme 14 was varied for
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the first time in the year 1972 which was finally
sanctioned by the State Government vide
notification dated 13.03.1974, wherein no
variation was made in Final Plot no.306.
(v) There was second variance in Town Planning
Scheme no.14 dated 29.10.1984, wherein the
Final Plot No.306 was included. As per that
process of variation, the officer concerned
reconstituted the said plot as plot no.306 which
had consisted of 28,530 square meters and plot
no.306/2 consisted of 1,188 square meters. The
1,188 square meters was deducted from the
original Final Plot for the purpose of extension of
road and given to the Ahmedabad Municipal
Corporation. The land of Final Plot No.306/1
admeasuring 28,530 square meters were given to
them as Final Plot No.306 and this scheme was
finally sanctioned by the Government on
27.03.2001.
(vi) The sanad of land are also issued by the
Government. If the Ahmedabad Municipal
Corporation claims the ownership over the land,
it has to file a suit in Civil Court.
(vii) As per the Town Planning Scheme, on
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transfer of the land to the authorities, the
Collector is no more an authority under the Act
and therefore he is not empowered to initiate any
proceedings to decide the same under the Land
Revenue Code. The authorities empowered is
appropriate authorities or the Town Planning
Officer.
(viii) The revenue authorities in exercise of suo
motu revisional powers under Section 211 of the
Bombay Land Revenue Code can not decide the
disputed question of title to any property. The
exercise undertaken by the revenue authorities
in this matter is completely without jurisdiction.
(ix) The name of the Ahmedabad Municipal
Corporation is wrongly inserted as co-owners
beside the name of the petitioner and
respondents in the property cards pursuant to
the impugned order of the City Deputy Collector.
9. 1. Learned senior counsel has relied upon the
decision in case of (i) Kashiben & Others V.
State of Gujarat & Others reported in 1989
GLH (2) 246, wherein in para 5 and 6, it is
observed as under:-
"5. The argument, to the effect that the scheme
cannot be finalized in respect of' the draft
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development plan published under the old Act,
has absolutely no substance in view of S. 124 of
the Gujarat Town Planning &Urban Development
Act, 1976. S. 124 reads as follows:
"(1) The Bombay Town Planning Act, 1954 is
hereby repealed.
(2) Notwithstanding such repeat anything done or
any action taken (including any declaration of
intention to make a development plan or town
planning scheme, any draft development plan or
draft town planning scheme published by a local
authority, any application made to the State
Government for the sanction of any draft
development plan or draft town planning scheme,
any sanction given by the State Government to
the draft development plan or draft town planning
scheme or any part thereof any restriction
imposed on any person against carrying out any
development work in any building or in or over
any land or upon an owner of land or building
against the erection or re-erection of any building
or work, any commencement certificate granted,
any order or suspension of rule, bye law,
regulation, notification or order made, any
purchase notice served on a local authority, any
interest of an owner compulsorily acquired or
deemed to have been acquired by it in pursuance
of such purchase notice, any revision of
development plan, any appointment made of Town
Planning Officer, any proceeding pending before
and any decision of, a Town Planning Officer, or a
Board of Appeal any final scheme forwarded to or
sanctioned, varied or withdrawn by, the State
Government, any delivery, or possession enforced,
any eviction summarily made, any notice served,
any action taken to enforce a scheme, any costs of
scheme calculated and any payments made to
local authorities by owners of plots included in a
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scheme, any recoveries made or to be made or
compensation awarded or to be awarded in
respect of any plot, any rules or regulations made,
under the repealed Act shall, in so far as it is not
inconsistent with the provisions of this Act, be
deemed to have been done or taken under the
corresponding provisions of this Act, and
provisions of this Act shall have effect in relation
thereto.
(3) All proceedings pending before a Town
Planning Officer or a Board of Appeal under the
Act hereby repealed on the date of
commencement of this Act shall be disposed of by
the Town Planning Officer or the Board of Appeal,
as the case may be, appointed or constituted
under this Act in accordance with the provisions
of this Act.
(4) The mention of particular matters in sub-
section (2) shall not affect the general application
to the repeal of the said Act of S. 7 of the Bombay
General Clauses Act, 1904 (which relates to the
effect of repeal)"
Except the fact that the land vests after the
preliminary scheme as per the new Act and other
minor procedural aspects, we do not find any
inconsistency between the old Act and the new
Act in preparing and finalising the Town Planning
Scheme. Hence, as per the provisions of Section
124 of the new Act, the proceedings taken under
the old Act was continued and the preliminary
scheme came to be sanctioned as early as 27-10-
1980 which was subsequently made final on 28-7-
1987. S. 65(3) of the new Act which reads "On and
alter the date fixed in such notification, the
preliminary scheme of the final scheme, as the
case may be, shall have effect as if it was enacted
in this Act," makes it clear that, once the
preliminary scheme is sanctioned, it becomes the
part of the Act. S. 67 of the new Act also states as
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follows :
"67. On the day on which the preliminary scheme
comes into force
(a) all lands required by the appropriate authority
shall, unless it is otherwise determined in such
scheme, vest absolutely in the appropriate
authority free from all encumbrances;
(b) all rights in the original plots which have been
reconstituted into final plots shall determine and
the final plots shall become subject to the rights
settled by the Town Planning Officer."
Thus, it is clear that, not only the lands included
in the preliminary scheme vest absolutely in the
appropriate authority, but the preliminary scheme
shall have the effect as if it were enacted in this
Act. In the decision in the case of Dungarlal v.
State reported in (1976) 17 Guj LR 1152: (AIR
1977 Guj 23), a Full Bench of our High Court has
held (at p. 32 of AIR):
"So far as the validity of such legislative measure
is concerned, the validity can be gone into even in
writ jurisdiction only to the limited extent whether
there is any transgression of jurisdiction of the
authorities concerned and whether the scheme as
finally emerged is totally inconsistent with the
Act. It is only the fundamental breaches, that is,
where minimum statutory essentials are not
complied with, which result in a total lack of
jurisdiction and not other procedural errors or
defects that would render a scheme, which had
become a legislative measure and a part of the
Act, liable to attack or challenge in a court on the
ground that it is null and void."
Proceeding further, the Full Bench held (at p. 34
of AIR):
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"....... it was open to a person affected to waive
individual special notice specified in sub-rule (3),
which was only as an additional safeguard for the
individual concerned. Therefore, that could never
constitute the minimum essential of the scheme or
such a basic requirement that its non-compliance
would have any nullifying consequence."
The Full Bench further held (at p. 35 of AIR):
"The provisions of R. 2 1 (1) lay down the
minimum essentials for protecting public interest
after the Town Planning Officer commences his
work. That sub-rule is introduced in accordance
with the principles of 'audi alteram partem'.
Special individual notices under old sub-rule (3)
cannot, therefore, be regarded as an essential
minimum safeguard as in the case of sub-rule (1)
so as to have the consequence of nullifying the
final scheme."
Finally, the Full Bench held:
"S. 51(3) which gives effect to the final scheme as
if enacted in the Act made it an Act of the
Legislature so as to make it immune from the
challenge on the ground of procedural defects,
which did not amount to exceeding the limit of
jurisdiction under the Act to frame a Town
Planning Scheme under the Act but were only in
the nature of the breach of additional procedural
safeguards, and which were not in the nature of
essential minimum requirements, will not render
the scheme null and void so as to entitle the party
to challenge it under Art. 226 or in any Court
after it becomes a part of the Act under S. 51(3)."
This decision, in our opinion, clearly satisfies the
position to the effect that the settled preliminary
scheme cannot be a subject matter of a writ
proceeding unless otherwise it comes within the
parameter mentioned in this Full Bench decision.
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The short facts of the present case, which we have
discussed above, clearly establish that the scheme
is not inconsistent with the Act nor any
fundamental breaches have been committed by
the author rely in sanctioning the schemes, nor
any limited statutory essentials have been violated
which will result in a total lack of jurisdiction.
6. In yet another Full Bench decision of our High
Court in the case of Saiyed Mohamed v.
Ahmedabad Municipal Corporation, reported in
(1977) 18 Guj LR 549 : (AIR 1978 Guj 82) the Full
Bench, dealing with the impugned notice of
eviction observed :
"In view of S. 53, once property has vested
absolutely in the local authority and all rights of
these persons occupying the same have come to
an end, the eviction power would be merely an
administrative power of eviction. Such eviction
would be of the same nature as of the persons
who are evicted under the provisions of the Land
Acquisition Act after the acquired land has vested
in the State and the matter is only of taking
possession."
In this decision, the Full Bench has observed,
that, once the land vests with the authority
concerned as per the Scheme, the Scheme has
become a legislative measure under which the
rights of the parties have totally ceased to occupy
the property and the power of eviction in such a
context would be in the nature of an
administrative power and, therefore, when the
parties admittedly have no right under the final
scheme to continue their occupation, they could
never invoke any prejudice or consideration of the
principle of fair play and justice so as to have
these impugned notices invalidated."
9.2. He has also relied on the judgment in case of
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Chandulal H. Ghodasara & Others V. State of
Gujarat and Others reported in (1997) 2 GLR
1451, especially para 7, 9, 11, 17 and 18,
wherein it is observed as under:-
"7. While assailing legality of the impugned
notice on various grounds, the principal
contention is about lack of jurisdiction of
Collector to issue such notice and as the notice
is without jurisdiction same is nullity in the
eyes of law and cannot be implemented.
9. The Act itself is a self-contained code
providing for implementing the scheme and
redressal of grievance of aggrieved parties. The
Act also bars jurisdiction of Civil Court to
decide any dispute arising under the scheme.
The aggrieved patty can take recourse to the
procedure provided and the decision of
authority under the scheme becomes final.
11. As per the Scheme of the Act, on transfer of
land to the authority referred to above, the
Collector is no more an authority under the Act,
and, thus is not empowered to initiate any
proceedings or decide the same. Qua the
scheme Collector is also one of the owners of
the lands included in the scheme. The authority
under the Act is either the Appropriate
Authority or the Town Planning Officer, who are
empowered to decide any matter or dispute or
objection raised by any of the owners of
property or rights which are adversely affected
by the Scheme. Therefore, in my view, the
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impugned notice issued by the Collector would
be without jurisdiction.
17. On the question of limitation, learned A.G.P.
Mrs. Parekh has referred to the decision of the
Supreme Court in the case of State of Orissa v.
Brundaban Sharma, 1995 Supp (3) SCC 249. It
was a matter arising under the Tenancy and
Land Laws. The order passed by the Board of
Revenue quashing the order of Tehsildar after
27 years was held to be valid and legal. The
question before the Supreme Court was not
about the period of limitation during which
validity and legality of an order can be
examined but the question was about effect of a
non est order which was void ab initio and it
was held by the Court that validity of a non est
order can be questioned in any proceeding at
any stage. The Court also held that for
entertaining revision, no period of limitation is
prescribed under the Act but the same should
be exercised within a reasonable time. In my
view, the ratio has no application, on facts, to
the case in hand.
18. Mr. Patel, learned Senior Counsel, has also
argued that by issuing impugned notice, under
intends to divest the petitioner of legal title and
possession qua the plot which has been
statutorily conferred upon him. The scope of
Rule 108 of the Rules is to deal with entries
made in the record of rights and dispute
regarding legality of such entries. As held by
the Supreme Court in the case of Sankalchan
Jaychandbhai Patel v. Vithalbhai Jaychandbhai
Patel, (1996) 6 SCC 433, mutation entries do
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not create any title to the property since such
entries are only to enable the State to collect
revenues from the persons in possession and
enjoyment of the property. The right, title and
interest as to the property should be
established independent of the entries. Thus, it
is clear that the entries in the revenue records
are for the fiscal purpose only and while
exercising powers under Section 108, the
Collector has no power to divest the petitioner
of his legal title vested by statute i.e., Town
Planning Scheme. It is settled law that one
cannot be divested of his legal title merely by
virtue of deciding mutation entries. As held by
the Supreme Court in the case of State of M. P.
v. Smt. Shiv Kunwarbai, AIR 1971 SC 1477
there must be some positive evidence to
deprive a person of his legal inheritance or
title. It must also be shown by irreproachable
evidence that the person in possession ceased
to have any interest therein at a particular
point of time and that by some process of law
the property vested in the person seeking to
eject the former lawful possessor. Similarly, if a
person has been legally invested with the
possession, the revenue authorities in exercise
of suo motu revisional powers under Section
211 of the Code cannot decide the disputed
question of title to any property. Mutation
proceedings cannot be converted into
proceedings for deciding question of title since
question of title has to be decided by a
competent Court of civil jurisdiction. If revenue
authority intends to decide question of title in
revenue proceedings, in my view, would be
usurping jurisdiction of Civil Court as held by
this Court in the case of Ratilal Chunilal Solanki
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v. Shantilal Chunilal Solanki, 1996 (1) GLH
816."
9.3. He has also relied upon the judgment in case
of State of Gujarat V. Patel Raghav Natha
and Others reported in 1969 GLR 992 (SC)
wherein para 13 and 14 it has been observed as
under:-
"13. The question arises whether the
Commissioner can revise an order made
under s. 65 at any time. It is true that there
is no period of limitation prescribed under s.
211, but it seems to us plain that this power
must be exercised in reasonable time and
the length of the reasonable time must be
determined by the facts of the case and the
nature of the order which is being revised.
14. It seems to us that s. 65 itself indicates
the length of the reasonable time within
which the Commissioner must act under, s.
21 1. Under s. 65 of the Code if the Collector
does not inform the applicant of his decision
on the application within a period of three
months the permission applied for shall be
deemed to have been granted. This section
shows that a period of three months is
considered ample for the Collector to make
up his mind and beyond that the legislature
thinks that the matter is so urgent that
permission shall be deemed to have been
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granted. Reading ss. 211 and 65 together it
seems to us that the Commissioner must
exercise his revisional powers within a few
months of the order of the Collector.
This is reasonable time because after the
grant of the permission for building
purposes the occupant is likely to spend
money on starting building operations at
least within a few months from the date of
the permission. In this case the
Commissioner set aside the order of the
'Collector on October 12, 1961, i.e. more
than a year after the order, and it seems to
us that this order was passed too late."
9.4. He has also relied upon the judgment in case
of Suleman Hasham Memon V. Kashiram
Bhau Patil reported in 1958 (60) BOMLR
1119. In para 3, it is observed as under:-
"3. The dispute in this case is regarding the
ownership or title to a portion of the land.
Proceedings under Section 84 of the Act are
summary, for the section provides for the
summary eviction of the persons
unauthorisedly occupying or wrongfully in
possession of any land. There is no right of
appeal against an order passed under this
section. It is extremely unlikely that the
Legislature could have intended that
complicated questions of title should be
decided in a summary manner by the
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Collector under Section 84 of the Act. In
Hiralal Chimanlal Thakore v. Keshrising
Baghavji (1956) Special Civil Application No.
2178 of 1955 a Division Bench of this Court
consisting of Shah and Vyas JJ. has held that
in a proceeding under Section 29 of the Act,
the Mamlatdar has no power to decide
questions as, to title and that these
questions can only be decided by a civil
Court. In Shankar Raoji v. Mahadu Govind
(1954) 57 Bom. L.R. 65 it was observed that
where a tenant makes an application against
a trespasser, who does not raise an issue
with regard to his being a sub-tenant, the
Mamlatdar may have no jurisdiction to
award possession to the tenant. If, therefore,
the Mamlatdar, who is required to hold a
regular enquiry of a judicial nature before
deciding questions arising under the Act,
cannot decide questions, of title, much less
can the Collector do so in a summary
proceeding held by him under Section 84 of
the Act."
9.5. He has also relied upon the judgment in case
of Ratilal Chunilal Solanki And Others V.
Shantilal Chunilal Solanki reported in 1996
GLH (1) 816. In para 9 and 10, it has been
observed as under:-
"9. According to settled principles of law, a
writ Court would be justified in correcting
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an error of law apparent on the record of
the case. As transpiring from the material on
record, the revenue authorities have
transgressed their limits in practically
deciding the disputed question of title to the
disputed lands by accepting the alleged Will
for the purpose of effecting mutation in the
revenue records pertaining to the disputed
lands. That would certainly constitute an
error of law apparent on the face of the
record. This Court's interference therewith
would clearly be justified.
10. Even if it is assumed for the sake of
argument that the jurisdiction in this case is
exercisable only under Article 227 of the
Constitution of India, the authorities below
have acted wholly without authority and
jurisdiction. It is not merely a simple error
of law which could not be corrected in
exercise of extraordinary jurisdiction under
Article 227 of the Constitution of India in
view of the binding ruling of the Supreme
Court in the case of Mohd. Yunus v. Mohd.
Mustaqim . When an order is without
authority or jurisdiction, it can certainly be
interfered with in the petition under Article
227 of the Constitution of India. The
aforesaid binding ruling of the Supreme
Court is, therefore, distinguishable on this
ground."
9.6. He has also relied upon the judgment in case of
Aher Naran Vijanand V. State of Gujarat and
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Anothers reported in 1990 (2) GLR 1161,
wherein in para 3, it is observed as under:-
"3. ....in proceedings under Section 61, title to
Govt. property cannot be in dispute and if alleged
encroacher alleges that he is not an encroacher,
question can be examined in proceedings under
Section 61.......Such a dispute has be resolved not
in proceedings under Section 61, but in
proceedings under Section 37(2) of the Code...."
9.7. He has also relied upon the judgment in case of
Evergreen Apartment Co-op Housing Society
Ltd. V. Special Secretary (Appeals) reported
in 1991 (1) GLR 113. He has also relied upon
the case of Anupam Rekadi Cabin Association
V. Jamnagar Municipal Corporation reported
in 1995 (1) GLH 586,
9.8. He has relied upon the case of Ahmedabad
Municipal Corporation V. Vireshchand
Chandrakant Desai reported in AIR 2002 Guj
379. In para 28, it is observed as under:-
"28. Once judgment is delivered by the
competent Court, it becomes the bounden
duty of the officers of the Corporation to
give effect of the judgment. How to give the
effect of the judgment is known the
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Corporation. We fail to understand that even
this Corporation is not giving effect to the
order made by its own appellate officers for
the subsequent years. it appears that the
valuation officer has not bothered to
examine the record of the previous year. In
several cases we have come across
complaints where judgments are not given
effect and therefore every year the assesses
are required to rush to the Court. We have
indicated that it increases the burden of the
Court unnecessarily and it decreases the
size of the pockets of the assessee
unnecessarily, without any fault on their
part. Therefore, it is the bounden duty of the
Corporation to give effect to the judgment of
the Court immediately."
9.9. He has relied upon the case of Vinodbhai
Balashanker Raval V. Deputy Collector,
Stamp Duty Valuation Department and
Others reported in 2008 G.L.H. (3) 365.
9.10. He has relied upon the judgment dated
29.01.2020 passed by the Co-ordinate Bench of
this Court in Special Civil Application No.10203
of 2007 in case of Manishbhai Sindhav V.
State of Gujarat and Other wherein in para
nos.7 and 8, it has been observed as under:-
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"7. The Constitution Bench of the
Supreme Court in case of Managing
Director, Ecil, Hyderabad Versus
B.Karunakar, 1993 (4) S.C.C. 727 has held
thus:
".............However, when the enquiry
officer goes further and records his
findings, as stated above, which may
or may not be based on the
evidence on record or are contrary to the
same or in ignorance of it, such
findings are an additional material
unknown to the employee but are taken
into consideration by the disciplinary
authority while arriving at its conclusions.
Both the dictates of the reasonable
opportunity as well as the principles
of natural justice, therefore, require
that before the disciplinary authority
comes to its own conclusions, the
delinquent employee should have an
opportunity to reply to the enquiry
officer's findings. The disciplinary
authority is then required to consider
the evidence, the report of the enquiry
officer and the representation of the
employee against it."
Thus, it is directed the Apex Court that
the delinquent is entitled to an
opportunity to reply to the inquiry
officers findings, and the disciplinary
authority is required to consider the
evidence, the report of the inquiry officer
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and the representation of the employee.
In the present case the impugned order
of punishment passed by the
disciplinary authority is bereft of any
discussion with regard to evidence or
the findings of the inquiry officer.
The reply of the petitioner is only
referred but the same is not "considered".
8. At this stage, it would be apposite to
refer to the decision rendered by the Apex
Court in the case of Chairman, Life
Insurance Corporation Vs. A Masilamani,
2013 (6) S.C.C. 530, wherein the word
"consider" is explained. The Apex
Court has held thus:-
"The word "consider", is of great
significance. Its dictionary meaning of the
same is, "to think over", "to regard as", or
"deem to be". Hence, there is a clear
connotation to the effect that, there must
be active application of mind. In other
words, the term "consider"
postulates consideration of all
relevant aspects of a matter. Thus,
formation of opinion by the statutory
authority, should reflect intense
application of mind with reference
to the material available on record.
The order of the authority itself,
should reveal such application of mind.
The appellate authority cannot
simply adopt the language employed by
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the disciplinary authority, and proceed
to affirm its order. (Vide: Director,
Marketing, Indian Oil Corpn. Ltd. &
Anr. v. Santosh Kumar, (2006) 11 SCC
147; and Bhikhubhai Vithlabhai Patel &
Ors. v. State of Gujarat & Anr., AIR 2008
SC 1771)."
Thus, the Apex Court, while
explaining the word "consider" has
held that the same connotes active
application of mind and postulates
consideration of all relevant aspects of a
matter. It is held that the formation of the
opinion by the statutory authority should
reflect intense application of mind with
reference to the material available on
record. In the present case, the order of
punishment passed against the
petitioner absolute fails the strictures laid
down by the Apex Court."
10. On perusal of the impugned order of the
City Deputy Collector, Ahmedabad dated
31.07.2010, it appears that he has passed the
impugned order by virtue of the provisions of
Section 203 of the Bombay Land Revenue Code
and has observed that initially the land of old
revenue survey nos.281, 282/1, 282/2, 283, 284
having been acquired for the purpose of
Dudheswar water works, Ahmedabad Municipal
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Corporation and it was accordingly mutated in
the revenue records village form no.7/12. He has
also observed therein that after implementation
of the Town Planning Scheme, revenue record
came to be closed and at that time of making
entry in the City Survey, the name of the
Ahmedabad Municipal Corporation for
Dudheswar water works did not reflected for the
land in question. It was ultimately given as final
plot no.306 in the Town Planning Scheme. At this
juncture, it needs to referred to the provisions of
Bombay Land Revenue Code. Section 203 of the
Bombay Land Revenue Code provides as under:-
"203. In the absence of any express
provision of this Act, or of any law for the
time being in force to the contrary, an
appeal shall lie from any decision or order
passed by a revenue officer under this Act or
any other law for the time being in force, to
that officer's immediate superior, whether
such decision or order may itself have been
passed on appeal from a subordinate
officer's decision or order or not."
11. Admittedly, the City Deputy Collector was
dealing with the order passed by the City Survey
Superintendent. He was not dealing with
provisions of Gujarat Town Planning and Urban
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Development Act, 1976. Now it is admitted facts
in this case that Town Planning Scheme number
14 came to be implemented in the year 1971 and
it has been varied twice. It is also admitted facts
that as per the Town Planning Scheme the land
in question has been given final plot number 306.
At this juncture, it is worthwhile to refer to the
various provisions of Town Planning Act,
especially sections 44, 45, 46 and 67. As per
section 44 of the Act, there are various
particulars to be contained in the draft scheme.
As per section 45 the size and shape of every plot
or construction is required to be mentioned.
Section 46 referred to the decision as to the
disputed ownership and Section 47 relates to the
consideration of any objection raised by anybody
against the draft scheme. The power is vested
with State Government to sanction draft scheme.
As per Section 67, the effect of the preliminary
scheme is mentioned, which is material one. The
Section 67 provides that on the day on which the
preliminary scheme comes into force; (a) all
lands required by the appropriate authority shall,
cities otherwise determined in such scheme,
vests absolutely in the appropriate authority, free
from all encumbrances; (b) all rights in the
original plots which have been reconstituted into
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final plot shall determine and final plots shall
become subject to the rights settled by the Town
Planning Officer.
12. As per the Town Planning Act, the power is
vested in the Town Planning Officer for passing
appropriate orders and in certain matters, the
decision of the Town Planning Officer is final. As
per section 54, the provisions of appeal has been
made against certain orders passed by the Town
Planning Officer. There is also provisions of
power of appeal and final authority is vested with
State Government. At this juncture, it is worht
while to reproduce Section 53 of the Town
Planning Act, which is as under:-
"53. Certain decisions of Town Planning
Officer to be final. - Except in matters arising
out of clauses (iii), (iv), (vi), (vii), (viii) and (x)
of sub-section (3) of Section 52, every decision
of the Town Planning Officer shall be final and
binding on all persons."
12.1.In view of the provisions of section 53(3)
certain orders passed under section 52 by the
Town Planning Officer is final. Subsection 3 of
section 52 needs to be reproduced, the same is
as under:-
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"52 (3) In the final scheme, the Town Planning
Officer shall,-
(i) fix the difference between the total of the
values of the original plots and the total of the
values of the plots included in the scheme in
accordance with the provisions of clause (f) of
sub-section (1) of Section 77;
(ii) determine whether the areas used, allotted or
reserved for a public purpose or purposes of the
appropriate authority are beneficial wholly or
partly to the owners or residents within the area
of the scheme;
(iii) estimate the portion of the sums payable as
compensation on each plot used, allotted or
reserved for a public purpose or for the purpose
of the appropriate authority which is beneficial
partly to the owners or residents within the area
of the scheme and partly to the general public,
which shall be included in the costs of the
scheme;
(iv) calculate the contribution to be levied under
sub-section (1) of Section 79, on each plot used,
allotted or reserved for a public purpose or for
the. purpose of the appropriate authority which is
beneficial partly to the owners or residents within
the area of the scheme and partly to the general
public;
(v) determine the amount of exemption, if any
from the payment of contribution that may be
granted in respect of plots exclusively occupied
for religious or charitable purposes;
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(vi) estimate the increment to accrue in respect of
each plot included in the scheme in accordance
with the provisions of Section 78;
(vii) calculate the proportion of the contribution to
be levied on each plot in the final scheme to the
increment estimated to accrue in respect of such
plot under sub-section (1) of Section 79;
(viii) calculate the contribution to be levied on
each plot included in the final scheme;
(ix) determine the amount to be deducted from, or
added to, as the case may be, the contribution
leviable from a person in accordance with the
provisions of Section 79;
(x) estimate with reference to claims made before
him, after notice has been given by him in the
prescribed manner and in the prescribed form,
the compensation to be paid to the owner of any
property or right injuriously effected by the
making of the town planning scheme in
accordance with the provisions of Section 82;
(xi) draw in the prescribed form the preliminary
and the final scheme in accordance with the draft
scheme :
Provided that the Town Planning Officer may
make variation from the draft scheme, but no such
variation, if it is of a substantial nature, shall be
made except with the previous sanction of the
State Government, and except after hearing the
appropriate authority and any owners who may
raise objections.
Explanation. - (i) For the purpose of this proviso
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"variation of a substantial nature" means a
variation which is estimated by the Town Planning
Officer to involve an increase of ten per cent in
the costs of the scheme as is described in Section
77 [***], on account of the provisions of new
works or the allotment of additional sites for
public purposes included in the preliminary
scheme drawn up by the Town Planning Officer.
(ii) If there is any difference of opinion between
the Town Planning Officer and the appropriate
authority as to whether a variation made by the
Town Planning Officer is of substantial nature or
not, the matter shall be referred by the
appropriate authority to the State Government
whose decision thereon shall be final."
12.2. On conjoint reading of the provisions of the
Section 52(3) and 53, it clearly reveals that in
the following matters, the order passed by the
Town Planning Officer is final and binding to all
persons;
12.3. (1) fixation of difference between total of the
values of the original plots and the total of the
values of the plots included in the scheme in
accordance with provisions of clause -F of
Subsection (1) of section 77; (2) Determination
as to whether the areas used, allotted or
reserved for public purpose or purposes of
appropriate authority are beneficial, wholly or
partly to the owners or residents within the area
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of the scheme; (3) Determination of the amount
of exemption if any from the payment of
contribution that may be granted in respect of
plots exclusively occupied for religious or
charitable purposes; (4) Determination of the
amount to be deducted from, or added to, as the
case maybe, the contribution leviable from a
person in accordance with provisions of section
79, and to draw in the prescribed form the
preliminary and final scheme in accordance with
the draft scheme.
13. Now, on perusal of the material placed on
record, it clearly reveals that after the
implementation of the Town Planning Scheme, all
the powers are vested under the Town Planning
Officer and the appropriate authority established
under the Town Planning Act. Admittedly, in the
present case, the Town Planning Scheme was
finalized initially in the year 1971 and the
petitioner and private respondents were allotted
final plot number 306 comprising of land
admeasuring 35,543 square yards that is 29718
square metres. It also reveals from the material
that Town Planning Scheme came to be varied in
the year 1972, but there was no any variance in
the plot number 306. It also reveals that the
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Town Planning Scheme was also varied in the
year 1994 where in the Said plot number 306
came to be reconstituted as plot number 306/1
consisted of 28530 square metres and plot
number 306/2 consisted of 1188 square metres.
It also reveals that plot number 306/2
admeasuring 1188 square metres was deducted
from the original final plot for the purpose of
extension of road and was allotted to the
Ahmedabad Municipal Corporation. The
implementation of the scheme and variance
thereof has not been disputed by the State or the
Ahmedabad Municipal Corporation. Since the
implementation of the scheme, on transfer of the
land to the appropriate authority, the collector
cannot be deemed to be an authority for the
purpose of making any mutation entry under the
Land Revenue Code. When the Town Planning
Act has been implemented and scheme there of
has been finalized and variance has also
accepted, then, if any question is relating to
making entry in the survey record, would be
governed by the relevant statute and not by
Gujarat Land Revenue Code. Therefore, if any,
order is passed by the Authority under the Town
Planning Act, then the person who has been
agreed by such order has to take recourse under
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that particular statute. The Revenue Authority
under the provisions of Bombay Land Revenue
Code cannot deal with such order under Section
203 of the Bombay Land Revenue Code or
Section 211 thereof. If any authority exceeds it's
jurisdiction not vested in it, and pass any order,
then such order would be null and void ab initio.
If any person is aggrieved by the order of the
City Survey Officer which is based on the Town
Planning Scheme, which has attained finality
under the Town Planning Act, then, he has to
take recourse under that particular statute and
not under the provisions of the Land Revenue
Code.
14. Now, so far as the question of acquisition of
land of old revenue survey numbers, on which
heavy reliance has been placed by the council for
the Ahmedabad Municipal Corporation is
concerned, it appears that this order does not
refer to the final plot number 306 in any manner.
When such order was passed, not entire land of
old revenue survey number 281, 282/1, 282/2,
283 and 284 came to be acquired and award was
passed in the year 1973. Thus, this fact could be
deemed to be well within knowledge of the
Ahmedabad Municipal Corporation. Further, at
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the time of publication of the draft scheme,
initially under the Town Planning Act, it might
have been placed on record everything before
the appropriate authority and the appropriate
authority i.e. Town Planning Officer had
considered it and thereafter issued the land of
final plot number 306 to the petitioner and the
private respondents. Admittedly, as observed
earlier, the Town Planning Scheme 14 has been
varied twice and ultimately in the year 1994 it
was finalized and the same has attained finality.
It appears that at no point of time, the
respondent authority has raised any objection in
allotment of final plot number 306 to the
petitioner as well as private respondents jointly.
If there is really any error in preparation of the
records after the implementation of the Town
Planning Scheme, then appropriate remedy for
the Corporation would be to approach the
concerned Authorities under the Town Planning
Act for rectification thereof. But under the
provisions of Bombay land revenue code, no
rectification can be made by the Revenue
Authorities in the records maintained and
prepared under the Town Planning Scheme.
Therefore, on that count also the impugned
orders of the revenue authority are not
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sustainable in the eyes of law.
15. Considering all the aforesaid facts and
circumstances of the case it clearly reveals that
the jurisdiction exercised under the Gujarat Land
Revenue Code by City Deputy Collector as well
as by the concerned Collector and the learned
SSRD are beyond their jurisdiction. Therefore,
the impugned orders are not sustainable in the
eyes of law and the same deserves to be quashed
and set aside.
16. In view of the above discussions, the present
petition is allowed. The impugned order dated
22/11/2016 passed in Revision No.14 of 2012 by
the Special Secretary, Revenue Department as
well as order dated 31/07/2010 passed by the
City Deputy Collector, Ahmedabad in TS/Appeal
No.21 of 2009 and order dated 02/01/2002
passed by the District Collector, Ahmedabad in
Appeal No.310 of 2010 are hereby quashed and
set aside. However the Liberty is reserved to the
Corporation to take appropriate legal remedy as
may be available under the appropriate Statute
to it.
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17. No order as to costs. Direct service is
permitted. In view of the order passed in the
main matter, Civil Application no.1 of 2019 and
Civil Application no.1 of 2021 are disposed of
accordingly.
Sd/-
(DR. A. P. THAKER, J)
URIL RANA
