IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6557 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE D.C.SRIVASTAVA sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? No 2. To be referred to the Reporter or not? Yes : 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? No 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge?No : -------------------------------------------------------------- PALITANA SUGAR MILLS PVT LTD Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR.D.R.DHANUKA, SR.COUNSEL WITH MR.MANEK KALYANIWALA, SOLICITOR, WITH MR.NILESH A. PANDYA FOR Petitioners MR. S.N.SHELAT, ADDL. ADVOCATE GENERAL WITH MR SP HASURKAR for Respondent Nos.1 & 3 MR.P.M.THAKKAR WITH MR NAVIN K PAHWA for Respondent No. 2 MR.J.R.NANAVATI FOR MR AR THACKER for Resp. No. 4 REST OF THE RESPONDENTS ARE SERVED -------------------------------------------------------------- CORAM : MR.JUSTICE D.C.SRIVASTAVA Date of decision: 17/12/1999 C.A.V. JUDGEMENT 1. Notice of this writ petition was served on the respondents. Shri S.N.Shelat, learned Addl. Advocate General with Shri S.P.Hasulkar appeared and argued the matter for and on behalf of respondents No.1 & 3, whereas Shri P.M.Thakkar and Shri N.K.Pahva appeared for respondent No.3 and Shri J.R.Nanavati, appeared for respondent No.4. The remaining respondents did not appear despite service of notice. Counter Affidavits have been filed by the respondents No.1 to 4. As such this petition is proposed to be finally disposed of at this stage. 2. In the writ petition, 13 prayers have been made by the petitioners. The Petitioner No.1 is Palitana Sugar Mills Private Limited, a company incorporated under the Indian Companies Act, 1956, whereas the petitioner No.2 is the Managing Director of the petitioner No.1 company. No doubt number of prayers have been sought in the writ petition, but the main dispute is regarding notification Annexure A/2 dated 6.8.1999 issued by the respondent No.1 and also regarding mistake in the revenue records in relation to Survey No.471/2. According to the petitioners, this plot belongs to the petitioner No.1 which was purchased through Sale Deed dated 30.3.1971 for a valuable consideration from Dr.Virbhadrasinhji Gohil and that some mistake occurred in describing 80 Acres, which is part of the area of this plot to be Bore Talav or Gauri Shanker Lake or pond. Several representations were made by the petitioner for rectification of the mistake which, despite recommendation from the Competent Authority, was not rectified. According to the respondent No.4 this 80 Acres of portion of Survey No.471/2 is part of Gauri Shanker lake or water body which is under the management and supervision of the respondent No.4, and as such the impugned notification is perfectly valid and legal and that it has been issued keeping in view the larger public interest that it has to be preserved as lake so that the discharge of water during monsoon season does not cause any harm to the public in general and residential houses are not sub-merged due to over-flowing of water from Gauri Shanker lake. 3. The case of the respondent No.1 is that the impugned notification was issued in exercise of the powers under Section 17 of the Gujarat Town Planning & Urban Development Act, 1976 (for short "the Act"). Hence the impugned notification cannot be quashed. 4. The case of the respondent No.2 - Bhavnagar Area Development Authority is also to the same effect. 5. After hearing at great length Shri D.R.Dhanuka, Senior Counsel on behalf of the petitioner and Shri S.N.Shelat, learned Additional Advocate General, on behalf of respondents No.1 & 3, Shri J.R.Nanavati and Shri P.M.Thakker, for and on behalf of respondents No.2 & 4 respectively and after examining carefully the entire material placed on record by the petitioners and the counter Affidavits of these respondents, following facts emerge from the record : A. On 30.3.1971 the petitioner No.1 purchased from Dr.Virbhadrasinghji Gohil Survey Plot Nos.469/1, 470/1, 471/2 paiki, 471/3 and 472 in village Vadva, Taluka Bhavnagar which was registered on 2.4.1971. The Sale Deed was executed for a consideration of Rs.4,64,000/-. The executant of the Sale Deed executed the same in the capacity of Karta of joint Hindu family as well as for himself. The dispute in the present petition is, however, only with regard to about 80 Acres of land of part of Survey plot No.471/2. The total area of land purchased was 3761658 sq.mtrs. B. On coming into force of the Urban Land (Ceiling & Regulation) Act, (for short "ULC Act"), the petitioner No.1 made a declaration and submitted housing scheme for economically weaker section of the society under Section 21 of the ULC Act. The competent Authority by order dated 6.12.1979 sanctioned the said scheme with administrative concurrence, approval and consent of the State Government for which Pages : 42 to 52 of the Paper Book can be referred. C. On 24.7.1980 Bhavnagar Municipal Corporation filed Special Civil Application No.941 of 1980 before this Court in which the petitioners and others were respondents. This Court, in that petition, passed an order inter-alia permitting the petitioner of this petition to construct residential houses at his own risk and cost. The said petition is still pending. Pages : 182 and 183 of the Paper Book can be referred. D. On 8.11.1985 the Government of Gujarat, through notification, sanctioned the draft development plan for Bhavnagar as well as the regulations thereto, subject to the modification so finalised, it was specified that the final development plan shall come into force with effect from 1.1.1986. In the map pertaining to Survey Nos.469, 470, 471 and 472 the disputed land which is part of Survey No.471/2 having an area of 80 Acres was shown as Water Body. E. The Collector, Bhavnagar, under his letter dated 29.8.1986 addressed to Suprintendent, Land Records and Deputy Consrvator of Forest, Bhavnagar, called upon them to inter-alia take measurement afresh of the land of Survey Nos.471/2, 471/4 and 472 of the petitioners' land jointly. This letter was addressed in view of inconsistancy maintained in the report of the District Inspector of Land Record (for short "D.I.L.R.") vide pages No.193 to 196 of the Paper Book. In response to this letter, on 31.12.1986, the Surveyor made his report and forwarded the same to the D.I.L.R. regarding measurement of land bearing Survey Nos. 471/.2, 3 & 4. Inter-alia it was stated in the report that the measurement was not done by Binocular and in this regard no previous records were available. On measurement being taken through Binocular the total area comes to 778 Acres - 90 Gunthas. However, as per village form No.7/12 the measurement comes to 744 Acres - 27 Gunthas. It was contended that this itself shows that the allegations that the petitioner No.1 has encroached upon the land of the water body is incorrect and stands demolished because 33 Acres - 36 Gunthas were evidently less, and as such the D.I.L.R. on 15.1.1987 submitted a report to the Superintendent, Land Records, Bhavnagar, that there is no encroachment of any person what so ever, for which Pages Nos.202 and 203 of the Paper Book can be referred. There is no record of measurement available in the office of D.I.L.R. which is evident from page No.200. F. On 12.3.1996 and 19.3.1996, the office of the Collector, directed the D.I.L.R. to take immediate measurement of the land Survey No.248 paiki which was recorded as lake in the revenue records in view of certain complaints received that there was encroachment over the land of the lake for which pages No.206 and 207 of the Paper Book can be referred. The Bhavnagar Municipal Corporation also requested the D.I.L.R. through letter dated 19.3.1996 to take measurement and make survey of the land pertaining to Bore Talav (lake of water body) and decide its boundry, vide page No.208 of the Paper Book. G. On 23.8.1996 the office of the D.I.L.R. submitted final report in persuance to letter dated 12.3.1996 of the Collector and in the said report it was stated very clearly that the land of the petitioners bearing Survey No.471/2 did not fall within the boundries of the Bore Talav for which pages No.215 to 215 of the Paper Book can be referred. H. On 28.1.1997 the Collector, Bhavnagar, wrote letter to the Superintendent of Land Records, directing him to verify and examine the limits of Bore Talav vide Pages No.221 and 222 of the Paper Book. I. The Superintendent of Land Records, in compliance of this letter furnished necessary information to the Collector after verification, examination and scrutinising the subject matter and gave opinion on 10.2.1997 that the Survey No.471/2 on the eastern side is not sub-merged in the lake and that the Surveyor has done measurement as per the provisions of the Bombay measurement Rules and City Measurement Rules. It was also stated that Survey number of Bore Talav was 248 having an area of 561 Acres - 38 Gunthas and the area of nearby survey numbers which have sub-merged are 135 Acres - 30 Gunthas, and all together there is 697 Acres - 28 Gunthas and that it was necessary to pass order for amendment so that the limit of the Bore Talav in the record is finally decided so as to avoid future unnecessary dispute vide Pages No.225 to 228 of the Paper Book. J. The petitioner No.1, on 10.6.1997, moved an application before the Chairman, Bhavnagar Area Development Authority, bringing to his notice the various correspondence and reports submitted by the D.I.L.R. and it was requested that the defect in the draft development plan where part of Survey No.471/2 has been shown as water body be rectified. K. The Chief Administrative Officer, Bhavnagar Regional Development Authority addressed a letter on 12.6.1997 to the Commissioner, Bhavnagar Municipal Corporation, requesting him to go through the facts of the petitioners letter aforesaid so that the decision in this regard can be taken, vide pages No.241 of the Paper Book. L. The Commissioner, Bhavnagar, through his letter dated 16.6.1997 addressed to the Chief Administrative Officer, B.A.D.A. stated that the limits of Bore Talav in the map published is alright except the limit vis-a-vis Survey No.471/2 which is defect as per the measurement carried out it comes only to the road connecting Sidsar - Bhavnagar. In view of this it was requested that Survey No.471/2 be deleted from the development plan from the limits of Bore Talav as the measurement has been done from 15.4.1996 to 20.5.1996 by the Superintendent, Land Record, and D.I.L.R. and they are vested with the legal power to decide the limits. M. On 12.2.1998 the petitioner No.1 made representation to the Chief Town Planner, Sachivalaya, Gandhinagar, requesting for his intervention in respect of rectification of draft development plan which was pending before the Government. Reliance was placed by the petitioner No.1 upon the said Survey Reports and other relevant materials pointing out that the petitioners land of Survey No.471/2, area 80 Acres in the development plan, is defective and the same may be deleted and corrected to residential zone, Page : 247 to 251 of the Paper Book. N. The Chief Town Planner on 9.3.1998 asked the Senior Town Planner, Saurashtra Division, Rajkot to examine the representation of the petitioner No.1, vide Page 260 of the Paper Book. The Town Planning Department of Saurashtra Division forwarded the copy of letter dated 12.2.1998 on 31.3.1998 to the Deputy Town Planner (Junior) Bhavnagar, for scrutiny and report, vide Page : 262 of the Paper Book. O. On 18.6.1998 the Collector, Bhavnagar, addressed letter to the D.I.L.R. Bhavnagar to prepare a new map of Bore Talav, Page No.264 of the Paper Book. P. On 25.6.1998 the D.I.L.R. addressed letter to the Collector, Bhavnagar, reiterating the facts as submitted in the earlier reports and the D.I.L.R. also requested the Collector to issue necessary instructions for rectification of entry in the revenue entry vide pages No.267 to 269 of the paper book. Q. However, strangely enough, on 15.7.1998 the Municipal Commissioner, Bhavnagar, addressed letter to the Chief Administrative Officer, Bhavnagar Area Development Authority, withdrawing the letter dated 16.7.1997 of his predecessor vide page No.273. Obviously, the petitioner No.1 was likely to be astonished and shocked through this surprise development and suspected that it was on account of some political interference in the matter. R. On 5,8,1998 the Deputy Town Planner forwarded his detailed report to the Senior Town Planner, Rajkot, so that necessary changes can be made in the development plan with regard to Survey No.471/2. It was recommended that the said Survey number be removed from the water body. It was observed that the limit of the Bore Talav is only upto the road joining Bhavnagar - Sidsar road and it should be kept in residential zone, vide Pages : 275 to 281 of the Paper Book. S. On 9.11.1998 the Collector, Bhavnagar, wrote to the D.I.L.R. seeking factual information in respect of the areas and the measurement of land bearing Survey No.471/2 to 4 and asked its opinion, vide pages No.289 to 290 of the Paper Book. The D.I.L.R., vide his letter dated 9.11.1998 gave his opinion furnishing relevant information on the basis of Survey report, vide pages No.291 to 294. T. Thereafter on 27.11.1998 the petitioner No.1 filed Civil Suit No.775 of 1998 in Civil Court, Bhavnagar, seeking inter-alia the stay of the letter dated 15.7.1998 of the Municipal Commissioner, in which the trial Court granted ad.interim injunction as prayed for by the petitioner. It may also be mentioned that the respondent No.4 also filed Civil Suit bearing No.329 of 1998 in the Civil Court, Bhavnagar and both the Suits are said to be pending. No decision has yet been taken in the aforesaid two suits. The injunction granted in favour of petitioner No.1 in Civil Suit No.775/98 is still operative and its operation could not be stayed in the Appeal filed by the respondent No.4. U. It appears that some articles were published in the news paper. The Additional Collector, Bhavnagar, on 15.6.1999, therefore, addressed letter to the Municipal Commissioner, and various other Authorities to examine the facts emerging from the news paper articles, vide page No.299 of the Paper Book. The D.I.L.R. forwarded detailed report on 24.6.1999 to the Additional Collector, reiterating his earlier opinion and report and clarified the facts in relation to Bore Talav stating that the Press Reports are false. Vide Pages : 303 to 306 of the Paper Book. 6. These are the first set of events. 7. The second set of events emerging from the record are as under : A. On 7.7.1999 the respondent No.1, namely, the State Government, issued notification dated 7.7.1999 in exercise of powers conferred under the Gujarat Town Planning & Urban Development Act stating that the Bhavnagar Area Development Authority has prepared and published revised draft development plan and the Government proposes to modify the said draft development plan as per schedule appended to the notification. It further called for the objection with respect to the proposed modification, which reads as under : "calls upon any person to submit suggestions or objections, if any, with respect to the proposed modifications to the Additional Chief Secretary to the Government of Gujarat, Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar, in writing within a period of two months from the date of publication of this notification in the official Gazette." Item No.17 of the Schedule reads as under : "The land bearing R.S.No. 471/2 part of village Vadva which is designated for water body (Gauri Talav) shall be deleted from the said use and the land so released shall be designated for "Residential Use" under Section 12(2)(a) of the Town Planning and Urban Development Act, 1976 as shown in the accompanying plan." (vide pages : 310 & 314 of the Paper Book) 8. Strangely enough, though, in the notification dated 7.7.1999 two months time was allowed from the publication in the official Gazette for filing objections, still on 6.8.1999 vide notification dated 6.8.1999 the respondent No.1 rescinded item No.17 of the Schedule appended to the notification dated 7.7.1999 vide Page : 315 of the paper Book. It is this notification which has been challenged in this writ petition with a prayer that it may be quashed because it is malafide exercise of powers and that it is contrary to the powers conferred under the Gujarat Town Planning Act and that it is arbitrary, without application of mind, that item No.17 was rescinded even before expiry of period of two months given for filing objection. 9. The petitioner No.1 has also filed Rejoinder Affidavit along with certain annexures. Large number of annexures have been annexed with the main petition and several annexures are annexed with the Rejoinder Affidavit. On the other hand no document has been filed by the respondents No.1, 2 & 3. 10. On the above material Shri Dhanuka, learned Counsel for the petitioners contended that there is apparent mistake in the record regarding entry of plot No.471/2, area 80 Acres, and it has been wrongly described as part of "Bore Talav" or "Gauri Shanker lake" and this error and mistake was sought to be rectified on the motion of the petitioner No.1 and despite favourable reports regarding correction of mistake the same was not rectified rather benefit was tried to be taken of the letter dated 15.7.1998 of the Municipal Commissioner addressed to the Chief Administrative Officer, BADA, withdrawing the letter dated 16.6.1997, page 273 of the Paper Book, Annexure : V. It was contended by Shri Dhanuka that this letter was written without any foundation and it has not been indicated what was misunderstanding in the earlier letter dated 16.6.1997 which had to be withdrawn by this letter dated 15.7.1998. He also contended that even if objections were not filed before the Area Development Authority the representation made by the petitioner No.1 could be treated in the nature of objection and the revised draft development plan could not be sanctioned, more particularly, when in the previous notification this land was designated for residential purpose as against Bore Talav. Subsequent notification dropping item No.17 of the earlier notification, according to Shri Dhanuka, was also arbitrary. 11. Certain objections in the nature of preliminary objections were raised by Shri J.R.Nanavati, learned Counsel for the Municipal Corporation, respondent No.4. In the first place he contended that no relief claimed by the petitioners can be granted in exercise of jurisdiction under Article 226 of the Constitution of India inasmuch as even if it is assumed that there is some mistake in the record the factual error or mistake cannot be corrected in exercise of jurisdiction under Article 226 of the Constitution of India and according to him the proper remedy is to approach the Competent Authority or the Civil Court. His another objection has been that the disputed question of ownership in the plot No.471/2 is involved and this factual dispute, including the mistake in the designation of the land of this plot, can be decided only by adducing proper evidence, oral as well as documentary, and this exercise cannot be undertaken under Article 226 of the Constitution of India. He, further contended that the correctness of survey reports has been disputed and disowned by the counter Affidavit of Shri Arvind Katara, Resident Deputy Collector, Bhavnagar. The value of the affidavit of Shri Katara will be discussed later on. At first it is to be seen whether there is actually any disputed question of fact involved in this case which cannot be decided or seen in exercise of jurisdiction under Article 226 of the Constitution of India. According to Shri Nanavati the plot in question is part of Bore Talav and Bore Talav is under the management of the Municipal Corporation, hence the petitioner No.1 can have no title in the said plot and there is thus disputed question of title which cannot be decided by this Court under Article 226 of the Constitution of India. In my opinion, the contention cannot be accepted. It has to be seen whether actually there is any real dispute of title between the petitioner No.1 and the Municipal Corporation, the respondent No.4. Mere denial of title of the petitioner No.1 at the time of argument or in the Counter Affidavit would not constitute disputed question of fact regarding ownership or title. On the other hand from the material on record it appears that the petitioner No.1 has not sought declaration of its title in the property. On the other hand the petitioner No.1 has tried to show prima facie that the entire plot No.471/2 is the personal property of the petitioner No.1 which was purchased by it from the previous owner Dr.Virbhadrasinghji Gohil as back as in the year 1971 through Registered Sale Deed dated 2.4.1971. Shri Dhanuka pointed out that prior to 30.3.1971, namely, the date of execution of Sale Deed this property was recorded in the name of the previous owner Dr.Virbhadrasinghji Gohil and from 1979 to 1999 it is entered in the name of the petitioner No.1. At no point of time this property was entered in the ownership of the Municipal Corporation. The Municipal Corporation is managing the affairs of Bore Talav, known as Gauri Shanker Lake, and it has a distinct survey No.248. Thus, the petitioners' land 471/2 is distinct from survey No.248. Not only that, the petitioners' land and the Bore Talav bear different survey numbers, but there is admission of the Bhavnagar Municipal Corporation in Special Civil Application No.941 of 1980 filed in this Court, in which the petitioner No.1 of this writ petition was respondent No.8 in that petition and Dr.Virbhadrasinghji Gohil was the respondent No.9. In para : 2 of this writ petition, vide Page : 396 annexed to the Rejoinder Affidavit, page : 345, there is categorical admission by the Bhavnagar Municipal Corporation, the petitioner of that writ petition, that the lands in question were sought to be transferred by a registered document dated 31.3.1971 in favour of Palitana Sugar Mills pvt.Ltd., respondent No.8 herein by respondent No.9 herein. Copy of Sale deed was also annexed in that petition as Annexure : A. It was also admitted that the respondent No.8 claimed title over the land in persuance of the registered document, Annexure : A. Consideration was also mentioned to be the same as alleged by the petitioner of this writ petition. In para : 2 of the said petition it was further admitted by the Municipal Corporation that Maharaja Virbhadrasinghji was owner of Survey Nos.469 to 472 and it was an agricultural land since many years. In this way the respondent No.4 before me has admitted the ownership of Maharaja Virbhadrasinghji Gohil as well as title of the petitioner No.1 in entire plot No.471 which was subsequently divided in sub-parts. In face of this admission the respondent No.4 cannot be permitted to raise imaginary dispute that plot No.471/2 is Bore Talav land under the management and supervision of the said Corporation. If in face of this admission attempt is tried to be made to raise dispute of title it can be said to be imaginary dispute and on such imagination, the jurisdiction of this Court under Article 226 of the Constitution of India, cannot be curtailed or taken away. 12. So far as maintainability of the petition is concerned Shri Nanavati contended that correction of mistake in revenue entry is not possible under Article 226 of the Constitution of India. Actually there is no specific prayer by the petitioner that the mistake be ordered to be corrected. On the other hand the petitioner is aggrieved from the fact that despite admission of the Competent Authority on the representation of the petitioner No.1 that Survey No.471/2 should not be designated as Bore Talav, no correction has been made and as such the said land in the revised plan may not be designated as Bore Talav or water