LPA/122/2007 1/32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 122 of 2007 In SPECIAL CIVIL APPLICATION No. 15460 of 2006 WITH LETTERS PATENT APPEAL No. 123 of 2007 In SPECIAL CIVIL APPLICATION No. 14517 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH Sd/- HONOURABLE MR.JUSTICE K.A.PUJ Sd/- ====================================== 1. Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2. To be referred to the Reporter or not ? NO 3. Whether their Lordships wish to see the fair copy of the judgment ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5. Whether it is to be circulated to the civil judge ? NO ====================================== JAGDISH BHAGAT GURU VASUDEV PRASADDASJI & 3 - Appellants Versus STATE OF GUJARAT & 3 - Respondents ====================================== Appearance : MR SB VAKIL, SENIOR ADVOCATE WITH MR BS PATEL WITH MR CHIRAG B PATEL for Appellants. GOVERNMENT PLEADER for Respondent No. 1. LPA/122/2007 2/32 JUDGMENT None for Respondent No. 2. MR HARIN P RAVAL for Respondent No. 3. MR SN SHELAT, SENIOR ADVOCATE WITH MR MITUL SHELAT for Respondent No. 4. MR PRASHANT G DESAI for Respondent No. 4. ====================================== CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE K.A.PUJ Date : 30/11/2007 COMMON CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE K.A.PUJ) 1. The appellants – original petitioners, namely, JAGDISH BHAGAT GURU VASUDEV PRASADDASJI and others in Letters Patent Appeal No. 122 of 2007 and the appellants – original petitioners, namely, GOPINATHJI DEV MANDIR TRUST and another in Letters Patent Appeal No. 123 of 2007 have filed these Letters Patent Appeals under Clause 15 of the Letters Patent challenging the order dated 02.09.2006 passed by the Learned Single Judge of this Court in Special Civil Application No. 15460 of 2006 & Special Civil Application No. 14517 of 2006 whereby the Learned Single Judge has dismissed the said petitions and confirmed the order dated 27.06.2006 passed by the learned Joint Secretary, Urban Development and Urban LPA/122/2007 3/32 JUDGMENT Rural Housing Department in revision application, who in turn confirmed the order passed by the Collector, Bhavnagar, in exercise of powers vested in him under Section 258 of the Gujarat Municipalities Act, 1963 in an appeal challenging the Resolution No. 137 (21) dated 30.05.2005 passed by the General meeting of the Gadhda Nagarpalika, the respondent No.3 herein. 2. The brief facts giving rise to the present appeals are that the respondent No.4 i.e. Shri Bochasanvasi Akshar Purshottam Swaminarayan Sanstha, Shahibaug, Ahmedabad had given an application to the Administrator of Gadhda on 07.08.2002 for allotment of 3 roads which were declared as public street and also used as public street for the last more than 200 years. On receipt of the said application, the respondent No.3 Municipality passed a Resolution on 12.07.2004 for inviting objections for closure of three streets. The respondent No.2 i.e. Collector, Bhavnagar however informed the respondent No.3 Municipality that unless the public street is closed under Section 146 of the Gujarat Municipalities Act, 1963, no decision could be taken and only after taking the decision and following LPA/122/2007 4/32 JUDGMENT the procedure laid down under Section 65 (2) of the Act, the land could be allotted. Pursuant to the Resolution dated 12.07.2004, public notice was published by the Gadhda Municipality in the daily newspaper and objections were invited. In all 7 objections were received in the prescribed time limit and two objections were received beyond the period of limitation. In the meeting held on 30.05.2005, Gadhda Municipality has passed the following resolutions :- “It is unanimously resolved that the proposal for prior approval is to be forwarded to the Government through the Collector, Bhavnagar as per the provisions of Section 65 (2) of the Gujarat Municipalities Act, 1963 and the valuation of the prevalent market price of the lands of the roads is to be done through the Town Planning and Assessment Department, Bhavnagar and having deposited the price of the land, the lands of road nos. 1-2 and 3 for the development and use is sold on permanent basis to Shri Bochasanvasi Akshar Purshottam Swaminarayan Sanstha as requested by them subject to the aforesaid conditions.“ 3. The conditions prescribed in the Resolution are as under:- LPA/122/2007 5/32 JUDGMENT 1) “To sell the lands of road Nos. 1 to 3 as requested by Shri Bochasanvasi Akshar Purshottam Swaminarayan Sanstha subject to objections. 2) The new road is to be given by the Sanstha near the Darwaja and in between the Darwaja and Vegetable Market having the same width as of the present road near the Vegetable Market. 3) The present Darwaja near the Vegetable Market is to be kept in the same condition as of the present.” 4. The said resolution was challenged by the petitioners before this Court in Special Civil Application No.12600 of 2005. While disposing of the said petition on 04.07.2005, the Learned Single Judge of this Court has observed that it is not necessary to entertain the present petition at this stage since the final decision with regard to the controversy involved in the present petition has not yet been taken by the authorities. The Court further observed that the final decision that may be taken by respondent No.1 with respect to Resolution dated 30.05.2005 shall not be implemented for a period of 15 days of its communication to the petitioners. 5. The Collector, Bhavnagar has considered the Resolution LPA/122/2007 6/32 JUDGMENT passed by the Gadhda Municipality as well as the objections raised by the petitioners and others against the said Resolution and passed a detailed order on 26.10.2005. Before confirming the Resolution of the Gadhda Municipality, the Collector Bhavnagar has carefully gone through the entire facts of the case and the application filed under Section 258 of the Gujarat Municipalities Act, 1963 and sufficient opportunities of being heard have been given to the concerned parties. He has also gone through Resolution No. 137 (21) passed by the Gadhda Municipality in its General meeting held on 30.05.2005 whereby it was resolved to sell the land of the impugned roads to Shri Bochasanvasi Akshar Purshottam Swaminarayan Sanstha as per their request along with the objections received in pursuance of the Notification issued under Section 146 (1) of the Gujarat Municipalities Act, 1963 on condition that instead of same, new roads besides darwaja and in between the darwaja and vegetable market as per the width as of the present road near the vegetable market be provided after obtaining prior permission of the Government under Section 65 (2) of the Gujarat Municipalities Act, 1963 and after recovering the market LPA/122/2007 7/32 JUDGMENT price of the land of the road, the resolution was to be implemented. He has, therefore, not accepted the prayer made by the present petitioners in their application under Section 258 of the Act. 6. Being aggrieved by the said order of the Collector, three petitions being Special Civil Application No. 23329, 23331 & 23332 of 2005 were filed before this Court. In these petitions, a statement was made by the learned Assistant Government Pleader on behalf of the State Government that in terms of provisions contained in Section 146 of the Act read with Section 65 (2) of the Act, the State Government would in exercise of power under Section 261 of the Act, may inquire about the legality of the decision of the Municipalities. A submission was also made that independently of the said situation, under Section 264 of the Act, the decision of the Collector dated 26.10.2005 would be open to revision by the State Government. The Court, therefore, found appropriate to dispose of all the three petitions vide its order dated 24.01.2006 and directed that the State Government shall initiate the above exercise suo-motu by issuing notice to all interested parties and the same LPA/122/2007 8/32 JUDGMENT exercise shall be completed within a period of 4 weeks from the date of the order and till the entire exercise was completed, Resolution of the Municipality dated 30.05.2005 was ordered to stand suspended and would not be acted upon. 7. The Joint Secretary (Municipalities), Urban Housing and Urban Rural Housing Department, Sachivalaya, Gandhinagar has considered the entire matter and objections raised were also taken into consideration and vide his detailed order dated 27.06.2006, came to the conclusion that there was no justification in interfering with the impugned order of the Collector dated 26.10.2005. He has observed in his order that the Gadhda Municipality, after issuing the public notice of 30 days under Section 146 (1) of the Act in the newspaper and after receiving objections and having considered the said objections has taken a decision and the said decision has been confirmed by the Collector under Section 258 of the Act. The right of ingress and egress to the property of the objectors was not affected and when it was not affected, then the decision taken by the Municipality in the interest of village Gadhda does LPA/122/2007 9/32 JUDGMENT not require interference. He has further observed that it cannot be believed that losses caused by going on the road which is not liked by some objectors and it cannot be said that it obstructs to him. The elected representatives have taken the decision unanimously keeping in mind the public interest and ordinarily, the said decision is to be given priority, especially when the decision taken by the Municipality is in accordance with the provisions of the law, it would be just and proper in the public interest to confirm the same. 8. The above order of the Joint Secretary was challenged before the Learned Single Judge of this Court in Special Civil Application Nos. 15460 of 2006 and 14517 of 2006. While dismissing the said petitions, the Learned Single Judge has shown only limited indulgence by observing that suffice it to say that while considering the matter for grant of permission under Section 65 of the Act, the authorities shall examine the aspects of regulation of the traffic during the period when Samaiya/procession is to be carried on during the period when ceremony of Jaljalani is to be performed once or twice in a year. If the existing road is sufficient, it may not call for putting LPA/122/2007 10/32 JUDGMENT condition. If the same is not sufficient, it would be for the authority to provide for such condition so that the general public may not be put to any undue hardship during the period when once or twice such procession is to be undertaken every year. Subject to this observation, since no case was made out for interference, the Learned Single Judge has dismissed the petitions. 9. It is this order of the Learned Single Judge which is under challenge in the present appeals. 10.Mr. S. B. Vakil, learned Senior counsel appearing with Mr. B.S. Patel for the petitioners has submitted that under the provisions of Section 146 of the Act, any public street, which is declared as such, cannot be de-notified without following due procedure. The resolution dated 30.05.2005 was passed without following any procedure. He has further submitted that the allotment of land of roads to the respondent No.4 is violative of Article 14 of the Constitution of India. Under the provisions of Section 65 (2) of the Act, the Municipality can not lease or sell off the land under Section 146 (1) and grant a lease of immovable property for more than ten years and LPA/122/2007 11/32 JUDGMENT the Resolution can be passed only after obtaining previous permission of the Government. However, the Resolution is passed for obtaining permission which is against the statutory provisions contained in proviso to Section 65 (2) of the Act. The roads for which the resolution was passed are in use for the last more than 200 years and except the roads in question, the residents thereon have got no other way for going to river Ghela. The appellants and others have filed the objections but without dealing with the same and giving any opportunity of being heard, the resolution was passed. The resolution was passed by the respondent No.3 in complete disregard of the earlier order passed by the Collector on 25.09.2003. The road in question is connected with sentiments of lakhs of devotees not only from the State of Gujarat or India but Internationally and there are many devotees who worship the soil on the road as Lord Swaminarayan has stayed for about 29 years at Gadhda in Swaminarayan Temple and the roads has been used by Lord Swaminarayan regularly for going to river Ghela. He has further submitted that on the roads which are ordered to be closed, the Trust has got properties and the tenants are residing thereon. For LPA/122/2007 12/32 JUDGMENT tenants there is no other way for going to river Ghela and hence, the resolution is passed without any application of mind. 11.Mr. Vakil has further submitted that as per the settled principles of law, the land of the Municipality cannot be sold to any individual or institution without public auction. The respondent No.4 had made demand and by fixing market value, if the same is to be sold, then it would be arbitrary and contrary to the constitutional provisions, especially when the Municipality, being a State within the meaning of Article 12 of the Constitution of India is not entitled to sell the land without public auction. He has, therefore, submitted that illegal action of the Municipality which is confirmed by the District Collector as well as by the Joint Secretary deserves to be set at naught. He has further submitted that both the orders passed by the Collector as well as by the Joint Secretary clearly reveal that there is a need of the road. The respondent No.4 has accepted the terms for providing alternative road of the same size. It is, therefore, clear that ignoring the sentiments of lakhs of disciples of Swaminarayan temple and inconvenience of LPA/122/2007 13/32 JUDGMENT the public at large, the respondent authorities have tried to help the private institution which is apparently arbitrary and against the law settled by this Court as well as by the Hon'ble Supreme Court. Mr. Vakil has, therefore, submitted that the respondent authorities as well as the Learned Single Judge of this Court have clearly committed an error in approving the action of the respondent No.3 Municipality in allotting the land of the roads to the respondent No.4 Trust. He has, therefore, submitted that the impugned orders are required to be reversed and the appeals be allowed accordingly. 12.In support of his submission that statutory power to do certain things in certain way must be done in that way or not at all, Mr. Vakil has relied on the decisions of the Hon'ble Supreme Court in the case of J. N. Ganatra V/s. Morvi Municipality, (1996) 9 SCC 495, Babu Verghese and others V/s. Bar Council of Kerala and others, (1999) 3 SCC 422, S. Ramanathan V/s. Union of India and others, (2001) 2 SCC 118, Dhanajaya Reddy V/s. State of Karnataka, (2001) 4 SCC 9. LPA/122/2007 14/32 JUDGMENT 13.Mr. Vakil has also relied on the decision of the Hon'ble Supreme Court in the case of Ramchandra Murarilal Bhattad and others V/s. State of Maharashtra and others, (2007) 2 SCC 588 in support of his submission that statutory authority exercising statutory power must assign reasons. 14.Mr. Vakil has further submitted that action without power has no validity and for that purpose, he relied on the decision of the Hon'ble Supreme Court in the case of Marathwada University V/s. Seshrao Balwant Rao Chavan, 1989 (3) SCC 132. 15.Mr. Vakil has further submitted that notice required under a statutory provision intended to protect public interest i.e. not for individual benefit cannot be waived. In support of this submission, he relied on the decision of the Hon'ble Supreme Court in the case of State Bank of Patiala and others V/s. S. K. Sharma, (1996) 3 SCC 364, Rajendra Singh V/s. State of M.P. And others, (1996) 5 SCC 460, M. C. Mehta V/s. Union of India and others, (1999) 6 SCC 237. LPA/122/2007 15/32 JUDGMENT 16.Mr. Vakil has further submitted that denial of hearing cannot be justified because the decision is subject to review or appeal. For this purpose, he relied on the decision of the Hon'ble Supreme Court in the case of Institute of Chartered Accountants of India V/s. L. K. Ratna and others, (1986) 4 SCC 537. 17.Mr. Vakil has further submitted that the petitioner was not a party to the proceedings under Section 258 before the Collector nor did the Collector give to the petitioner any opportunity to be heard. The State Government's power under Section 261 are available with reference to matters for which its sanction, approval or consent is required under the Act. No such Government sanction, approval or consent is required for discontinuance or stopping of a public street under Section 146. Lastly, Mr. Vakil has submitted that the State Government's consideration under Section 264 of objections filed under Section 146 is no substitute for Municipality's consideration under Section 146 nor would rectify the infirmity in the Collector's order. 18.An affidavit-in-reply is filed on behalf of the respondent LPA/122/2007 16/32 JUDGMENT No.3 – Gadhda Municipality. Mr. Harin Raval, learned advocate appearing for the respondent No.3 has submitted that the appeals filed by the appellants are misconceived in law as well as in facts and, therefore, deserve to be dismissed as untenable. A perusal of the order of the Learned Single Judge would clearly go to show that the petitions were treated as filed under Article 227 of the Constitution of India. In view of the said fact, the present appeals which are preferred by the appellants under Clause 15 of the Letters Patent are not maintainable in as much as no appeal preferred against an order passed in a petition under Article 227 of the Constitution of India would be maintainable and, therefore, the present appeals are clearly incompetent and untenable and, therefore, deserve to be dismissed on this ground alone. He has further submitted that the appeals filed by the appellants have become totally infructuous in view of the fact that after the judgment having been rendered by the Learned Single Judge on 02.09.2006, various subsequent events have taken place which are subject matter of a challenge in Special Civil Application No. 6552 of 2007 filed by Shri Gopinathji Dev Mandir Trust and another and, therefore, the LPA/122/2007 17/32 JUDGMENT present appeal deserves to be dismissed. Mr. Raval has further submitted that the respondent No.4 forwarded the proposal dated 07.08.2002 for grant of land admeasuring 9702 Sq. Ft. equivalent to 1078 Sq. Yds. Similarly, by another proposal of even date, a request was made for grant of 5687 Sq. Mts. equivalent to 631.81 Sq. Yds. for the purpose of respondent No.4. Similarly, by third proposal of even date which was proposed by the respondent No.4 for grant of 461.60 Sq. Mts. equivalent to 551.80 Sq. Yds. of land was forwarded for its purpose. On 26.11.2002, a proposal was forwarded for consideration of the Collector, Bhavnagar requesting him to grant permission for closure of the road on permanent basis in accordance with the Gujarat Municipalities Act. On 18.12.2002, the Collector intimated the then Administrator of the respondent Municipality that after following necessary procedure under Section 146 (1), the land would be disposed of after passing necessary resolutions. It was further intimated that the same would require prior approval of the Government under Section 65 (2) of the Act. On 02.07.2004, a reminder was made by the respondent No.4 Trust with respect to its earlier three proposals LPA/122/2007 18/32 JUDGMENT dated 07.08.2002. On receipt of the same, on 12.07.2004, a resolution was passed by the General Body vide Resolution No. 97 (17) and a public notice was issued on 23.07.2004. On receipt of the objections, which included some favouring the proposal and some objecting to it, on 19.08.2004, the Collector, Bhavnagar addressed a communication to the Executive Kothari of Shri Gopinathji Dev Mandir Trust to the effect that further action would be taken in accordance with law after receipt of the report. The matter was taken up for consideration on 30.05.2005 by a resolution of the General Board meeting of the Municipality and after considering the objections, it was decided to sell the land as proposed to the respondent No.4. Shri Gopinathji Dev Mandir Trust approached the Collector against the said resolution No. 137 (21) under Section 258 of the Act and also approached this Court by way of Special Civil Application No. 12600 of 2005 which came to be disposed of by an order dated 25.07.2005. In view of the dismissal of the writ petition, by an order dated 25.07.2005, said Trust and another were heard and proceedings instituted under Section 258 of the Act were disposed of by order dated 26.10.2005 and application of LPA/122/2007 19/32 JUDGMENT the said Trust was rejected and Resolution dated 30.05.2005 was upheld. Thereafter, three petitions were filed before this Court as indicated above which came to be disposed of by judgment and order dated 24.01.2006 and directions were issued thereunder. In view of the directions issued, the proceedings under Section 264 of the Gujarat Municipalities Act, 1963 were decided after hearing the parties by judgment and order dated 27.06.2006 and the order of the Collector dated 26.10.2005 was upheld. Thus, the cumulative effect thereof was that Resolution No. 137 (21) of the respondent Municipality dated 30.05.2005 was sustained. Thereafter, against the order dated 27.06.2006, other two petitions being Special Civil Application Nos. 14527 of 2006 and 25460 of 2006 were filed which came to be disposed of by order dated 02.09.2006. In view of the one direction given therein, proposal was forwarded by the office of the Collector dated 29.11.2006, seeking prior sanction of the Government under Section 65 (2) of the Municipalities Act. Urban Housing and Urban Development Department of the State of Gujarat, vide order dated 29.01.2007 granted such permission under Section 65 of the Act. LPA/122/2007 20/32 JUDGMENT In view of the said order of the State Government, the Collector passed consequent order dated 20.02.2007 for payment of sale consideration amounting to Rs.17,24,738/-. The respondent No.4 has made the payment of the said amount to the respondent No.3 Municipality on 21.02.2007. In view of the receipt of the sale consideration and the above referred orders, the respondent No. 3 Municipality has executed a registered document of sale bearing No. 185/07 dated 07.03.2007 and has put the respondent No.4 in possession of the land in question by drawing regular panchnama. The consideration has been duly received by the respondent No.3 Municipality and registered document of sale has been executed and the respondent No.4 was put into possession by the respondent No.3. 19.Mr. Raval has further submitted that in view of the developments that ensued in Gadhda town, though the respondent No. 3 Municipality had already earlier passed resolutions, accepted sale consideration and also executed registered document of sale and after everything was completed, circulating resolution No. 207 (1) dated 16.03.2007 was passed. Thereafter a meeting LPA/122/2007 21/32 JUDGMENT was held on 23.03.2007. There was no agenda at that time for consideration of circulating Resolution No. 207(1) in the meeting of the respondent Municipality. From the Chair, a proposal was moved to confirm the circulating Resolution No. 207 (1) dated 16.03.2007 and in view of the said proposal having been made from the chair and supported by 21 members, Resolution No. 211 (4) was passed in the said general meeting of the respondent Municipality on 23.03.2007. On 12.04.2007, the respondent Municipality has received an order of the Collector passed under Section 258 (1) of the Act whereby the circulating Resolution No. 207 (1) dated 16.03.2007 was suspended. He has, therefore, submitted that nothing survived in the appeals and the appeals deserve to be dismissed. 20.An affidavit-in-reply is filed on behalf of respondent