Gujarat High Court
Savitaben Laxmikant Vekaria vs Taluka Panchayat on 9 January, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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C/SA/167/2002 ORDER DATED: 09/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 167 of 2002
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SAVITABEN LAXMIKANT VEKARIA
Versus
TALUKA PANCHAYAT & 2 other(s)
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Appearance:
MR HENIL M SHAH(10677) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 09/01/2024
ORAL ORDER
1. This Second Appeal under Section 100 of the Code of Civil
Procedure has been filed against the judgment and decree dated
18.09.2002 passed by the First Appellate Court in Regular Civil
Appeal No.58 of 2000 arising out of judgment and decree dated
23.03.2000 passed by the learned 3rd Additional Civil Judge, Bhuj
in Regular Civil Suit No.78 of 1997.
2. The appellant is the original plaintiff. The Civil Suit for declaration
and injunction was decreed in favour of the appellant. In First
Appeal filed by the Taluka Panchayat, Bhuj, against the judgment
and decree, the Appellate Court has modified the judgment and
decree and by partly allowing the appeal, directed the Panchayat
Authority to decide the objections against the public auction for the
sale of disputed plot and either confirmed or set aside the auction
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proceedings in accordance with law.
3. Being aggrieved with the said judgment and decree, the appellant
plaintiff has preferred this second appeal.
4. The necessary facts leading to file this second appeal are that
appellant Savitaben Laxmikant Vekariya, resident of Village
Mirzapur, Tal.: Bhuj, Dist.: Kutch, had participated in an auction
of plots situated at Village: Mirzapur. The auction was undertaken
by office of Gram Panchayat, Mirzapur. The said public auction
held on 13.09.1996. The appellant being highest bidder of Plot
No.2B, was directed to pay the amount of Rs.18,095/-. In the
process of the said public auction, the Revenue Officers were
present and in their presence, the appellant was allotted the said
plot. The amount of the plot was paid in a stipulated time and
receipt thereof also was issued in favour of the appellant. On
25.10.1996, Mirzapur Gram Panchayat forwarded the entire case
papers to Taluka Panchayat Office for confirmation of the public
auction. According to the case of the appellant, no one has
submitted objection against the said auction sale, within statutory
period of 30 days, as contemplated under Section 178 of the
Bombay Land Revenue Code, 1879 and therefore, the respondent
authority has no option, but it is mandatory on their part to confirm
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the sale auction. According to the case of the appellant, after
statutory period of 30 days, objections were submitted by the third
party against the auction sale. The possession of Plot No.2B which
was allotted to the appellant was handed over by Mirzapur Gram
Panchayat in the month of January-1997. Despite of these facts, the
order of confirmation or setting aside the sale was not passed by
the respondent authority, as contemplated under Section 179 of the
Bombay Land Revenue Code. The appellant had started
construction upon the said Plot No.2B, without any permission.
The Gram Panchayat served a notice upon the appellant in relation
to the said construction and directed to stop the construction.
5. In the aforesaid facts and circumstances, the appellant filed a Civil
Suit for permanent injunction and declaration challenging the
action on the part of the gram panchayat and by way of mandatory
injunction, asked to issue a sanad and relevant title papers in
relation to the purchased Plot No.2B.
6. The Civil Suit was contested by the respondents authority by filing
a written statement. In the written statement, they denied that the
appellant having legal possession of the plot as it was never handed
over to the appellant. That in view of the pendency of the auction
sale proceedings, the appellant has no right to erect any
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construction upon the said plot without permission of the
Panchayat. The issue of jurisdiction was also raised in the written
statement as there is an alternative remedy available under the
provisions of Bombay Land Revenue Code to redress the
grievance.
7. On the basis of rival pleadings, the learned Trial Judge framed the
issue at Exh.31.
8. Before the Trial Court, the evidence of the appellant was recorded
at Exh.34 and her witness Bhimjibhai Vekhariya examined at
Exh.42. The appellant had relied on the report of the Gram
Panchayat at Exh.35, payment receipt at Exh.36, the proceedings
of the auction sale at Exh.38. The Officer of the Taluka Panchayat
was examined at Exh.47 and the copy of the objections were
produced at Exhs.47 and 49.
9. After hearing the parties and upon appreciation of evidence on
record, the learned Trial Court was pleased to allow the suit. The
learned Trial Court held that the appellant after paying the
consideration had purchased the said plot in a public auction and
she was put in possession by the authority concerned. The learned
Trial Court after considering the provisions of the Bombay Land
Revenue Code held that it is incumbent on the part of the authority
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to confirm the auction sale and directed the respondent authority to
confirm the auction sale and to issue sanad and other papers in
favour of the appellant and declared the notice proceedings illegal
and against the principle of natural justice. The learned Trial Court
also directed the appellant to get the necessary permission for
further construction.
10. The respondent Panchayat Authority, by filing Regular Appeal, has
challenged the legality of the aforesaid judgment and decree. The
First Appellate Court, after hearing the parties, directed the Taluka
Development Officer, Bhuj to decide the objections, within 30
days and pass necessary order under Section 179 of the Bombay
Land Revenue Code, which authorized the authority concerned to
confirm the auction sale of immovable property or setting aside the
auction sale.
11. This appeal has been admitted on the following substantial
questions of law:
"1. What is true construction of Section 179 of the Bombay
Land Revenue Code and whether after lapse of 30 days after
auction sale, objections to the auction sale can be allowed to be
raised and can be ordered to be decided, as ordered by the Lower
Court.
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2. Whether the decree of the Trial Court can be challenged
by the defendant no.2."
12. This Court has heard learned counsels Mr.Henil Shah for the
appellant and Mr.H.S. Munshaw, learned counsel for the
respondent.
13. Mr.Henil Shah, learned counsel appearing for the appellant has
submitted that the facts in relation to the public auction held by the
Mirzapur Gram Panchayat and the appellant being highest bidder,
had paid the entire consideration in a stipulated time and in the
presence of the Revenue Officers, the possession of disputed plot
was handed over to the appellant are not in dispute. In such
circumstances, he submitted that the entire auction was proceeded
by following the mandatory procedure, as contemplated under
Sections 165 to 174 of the Bombay Land Revenue Code. That the
Mirzapur Gram Panchayat forwarded the entire chapter for
confirmation to the Taluka Panchayat Office and within 30 days,
no any application in the form of objections made to the Collector
for setting aside the auction sale. That the said proposal was
forwarded on 25.10.1996 to the office of TDO. That no any
application against the confirmation of sale auction was filed,
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within 30 days i.e. from 26.10.1996 to 25.11.1996. That the
objections were filed on 29.11.1996 i.e. after a period of 30 days.
That if the application is filed after a statutory period, then it is
incumbent on the part of the authority concerned to pass an order
confirming the sale.
14. In view of the aforesaid admitted facts, the learned counsel
Mr.Shah has submitted that, the First Appellate Court has erred in
directing the respondent authority to consider the objections filed
at Exhs.48 and 49 against the sale as Section 179 of the Bombay
Land Revenue Code does not permit the authority concerned to
entertain and/or consider the objections which has been filed after
30 days from the date of the sale of immovable property.
15. Mr.Henil Shah, learned counsel has further submitted that the First
Appellate Court could not have modified the decree by issuing the
necessary directions to consider the objections as contemplated
under Section 179 of the Bombay Land Revenue Code, because
there is no provision to entertain the objections after 30 days from
the sale and therefore, the judgment and decree passed by the First
Appellate Court is not sustainable in law.
16. On the other hand, learned counsel Mr.Munshaw appearing for the
respondents has submitted that the First Appellate Court has rightly
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directed the authority concerned to consider the objections and as
such, there is no breach and/or violation of Section 179 of the
Bombay Land Revenue Code.
17. Referring to the contents of the affidavit in reply, he has submitted
that in view of the directions given by the First Appellate Court,
the Taluka Development Officer, Bhuj has considered the
objections against the sale and considering the facts and
circumstances of the case has cancelled the auction proceedings
held by Mirzapur Gram Panchayat and thus, therefore, the question
does not arise for issuance of sanad and other papers in relation to
the sale of Plot No.2B and in that view of the matter, the appeal
having become infructuous.
18. It is not in dispute that the disputed plot situated at Village
Mirzapur was sold to the appellant by the respondent authority.
The authority concerned had followed the procedure for auction of
public property, as contemplated under Sections 165 to 174 of the
Bombay Land Revenue Code. The auction was held on
13.09.1996. The payment Rs.18,095/- was paid within 15 days i.e.
on 22.09.1996. The Mirzapur Gram Panchayat forwarded the entire
chapter for the confirmation of the sale. The objections referred by
the First Appellate Court were filed after 30 days. In other words,
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the objections were not filed within 30 days from the date of sale.
19. To appreciate the contentions, it is necessary to refer Sections 178
and 179 of the Bombay Land Revenue Code, which read thus:
"178. Application to set aside sale. - At any time within thirty days from
the date of the sale of immovable property application may be made to
the Collector to set aside the sale on the ground of some material
irregularity, or mistake, or fraud, in publishing or conducting it;
But, except as is otherwise provided in the next following section, no sale
shall be set aside on the ground of any such irregularity or mistake,
unless the applicant proves to the satisfaction of the Collector that he has
sustained substantial injury by reason thereof.
If the application be allowed, the Collector shall set aside the sale, and
direct a fresh one.
179. Order confirming or setting aside sale. - On the expiration of thirty
days from the date of the sale, if no such application as is mentioned in
the last preceding section has been made, or if such application has been
made and rejected, the Collector shall make an order confirming the
sale:
Provided that, if he shall have reason to think that the sale ought to be
set aside notwithstanding that no such application has been made, or on
grounds other than those alleged in any application which has been
made and rejected, he may, after recording his reasons in writing, set
aside the sale."
20. A bare reading of sections says that the aggrieved party may file
objections within 30 days from the date of sale of immovable
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property for setting aside the sale on the ground of material
irregularity or mistake or fraud in publishing or conducting the
auction process. On the expiry of 30 days, if no such objections as
mentioned in Section 178 is filed or rejected, the
authority/Collector shall bound to pass an order confirming the
same.
21. In view of the aforesaid statutory provisions, this Court is of the
considered opinion that the First Appellate Court could not have
modified the decree passed by the Lower Court. The First
Appellate Court has ignored the statutory provisions of the
Bombay Land Revenue Code which does not permit or gives
discretion to the Court to direct the authority concerned to decide
the objections, which were filed after a period of 30 days. The
Appellate Court failed to appreciate that on the expiry of 30 days
from the date of the sale, if there is no any application and/or
objections made to the authority to set aside the sale, the authority
has no option, and they have to confirm the sale by passing the
appropriate order as contemplated under Section 179 of the
Bombay Land Revenue Code.
22. For the reasons aforementioned, this Court comes to a conclusion
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that the Lower Court has rightly interpreted Section 179 of the
Bombay Land Revenue Code and directed to confirm the sale. The
First Appellate Court, by ignoring the said mandatory provision, in
a mechanical manner, modified the said directions issued by the
Lower Court and has committed an error of law while directing the
authority to decide the objections and take appropriate decision as
provided under Section 179, which is not sustainable in law.
Consequently, this Court finds merits in the appeal as the First
Appellate Court has committed an error of law while modifying
the decree passed by the Lower Court.
23. Resultently, present appeal is allowed. The judgment and decree
dated 18.09.2002 passed by the First Appellate Court in Regular
Civil Appeal No.58 of 2000 arising out of judgment and decree
dated 23.03.2000 passed by the learned 3rd Additional Civil Judge,
Bhuj in Regular Civil Suit No.78 of 1997 is set aside.
24. It is clarified that during the pendency of the appeal proceedings,
the respondent authority has set aside the auction sale proceedings.
Admittedly, the appellant is in possession of the disputed plot till
date. In such circumstances, the respondent authority shall have to
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follow the consequences. The benefit of this order should not be
extended to the other litigant parties, who have not challenged the
judgment and decree of the First Appellate Court.
(ILESH J. VORA,J)
Rakesh
