IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No 128 of 1988 with CIVIL APPLICATION NO.10773 of 2001 in SECOND APPEAL No.128 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 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? 5. Whether it is to be circulated to the Civil Judge? : -------------------------------------------------------------- HEIRS OF RAJKUMAR BODARAM PURASWAMI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Second Appeal No. 128 of 1988 MR MUKESH A PATEL for Petitioners No. 1-1/2 MR BY MANKAD, AGP for Respondent No. 1 MR PK JANI for Respondent No. 2 2. Civil Applicatio No.100773 of 2001 in S.A.128/88 MR PK JANI for Applicant MR MUKESH A PATEL for Respondent No.1-2 MR BY MANKAD, AGP for Respondent No.3 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 24/07/2002 C.A.V. JUDGEMENT 1. Bodaram Samaldas Puraswami and others, the appellants have filed this second appeal under Section 100 of the Code of Civil Procedure, 1976, against the judgment and decree dated 9th February, 1988, passed by the learned District Judge, Mehsana, in Regular Civil Appeal No.230 of 1982. The learned District Judge by his impugned judgment and decree pleased to allow the appeal and set aside the judgment and decree dated 30th April, 1982 passed by learned Civil Judge (S.D.), Mehsana in Regular Civil Suit No.35 of 1975 filed by the plaintiff appellants herein. 2. The facts giving rise to the Second Appeal are as under:- 2.1 There is a land ad-measuring 26138 sq.yd. out of Survey no.37 of sim of Mahesana Town. The Collector Mehsana vide his order dated 13.11.1962 granted the said land in favour of Sindhinagar Co-operative Housing Society, Mehsana (hereinafter referred to as `the society'). Thereafter the said society after having got lay out plan and the map prepared for the purpose of construction got sanction it from Government and has constructed buildings thereon. 2.2 It is alleged that they are in possession and enjoyment of the said houses. Thereafter in 1972 the society wanted to construct community hall in place of community center and society wanted to amalgamate 20' wide land on three sides of the plot with the adjoining plot holders and for that purpose revised plan was submitted to the District Magistrate, Mahesana by the society. Thereafter society's revised plan was sanctioned with the consultation of the Consulting Surveyor, and as per the order of the Collector, Mahesana, land N.A.3445 dated 9.11.72 said revised plan was sanctioned. As per said sanctioned plan, society handed over possession of 20' wide and adjoining to the plot holders to the respective plot holders. On the southern side of the society, plaintiff's bungalow lands were there and society handed over said land to the plaintiffs. 2.2(A) It has been further stated that in the said land at the plaintiff's costs and with the consent of the society and Mahesana Municipality, plaintiff constructed a compound wall but before that Guru Nanak Society had filed Regular Civil Suit against Sindhi Society which being Regular Civil suit No.210/73 and objected to said construction of the wall stating therein that it is a road land. 2.3 Thereafter they passed purshis in the said suit and stated that as there is 15' wide road between Sindhinagar Society and Peon's Society which is lying open belonging to the Government, said land be kept open. The plot holders of Sindhi society can construct over their own land and they had no objection to this arrangement. In the said purshis it was also stated that the Government road does not pass through the land belonging to Sindhi Society and by passing such purshis plaintiffs of that suit withdrew suit. 2.4 Pursuant to the order of the District Collector, Mahesana, dated 9th November, 1972, the plaintiffs in their own land with the permission of Mahesana Municipality on the southern side of the plaintiffs' plot at their own costs and expenses in the open 20' width land constructed a wall. Thereafter, Gurukul Society and Gurunanak Society filed an application under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as `the Code') against the Collector's order Land N.A. 3445. 2.5 Against the aforesaid order of the Collector, a revision application was filed before Special Secretary, Revenue Department, Ahmedabad on 24.11.73. The Government dismissed the said revision application and upheld the order of the District Collector, Mahesana, for implementation of the revised plan. 2.6 It has been further stated that as per the aforesaid decision, there is open piece of land 15' in between Sindhi Society and Peon's Houses and there is no other land open for the purpose of public road. Still, however, the Collector, Mahesana by his order dated 4.5.74 ordered that 30' width road land is ordered to be vested in Mahesana Town Municipality. 2.7 Being aggrieved and dissatisfied with the said action, plaintiff filed a suit for declaration that that the said order of District Collector is illegal, unjust and against the principles of natural justice. 3. The defendant No.1 - State of Gujarat filed its reply at Exh.23 resisted the suit and contended as under: 3.1 It was stated that as a matter of fact the Government land ad-measuring 26138 sq.yards out of Survey No.37 was granted to the plaintiffs' society for the purpose of constructing houses for its members. The said plot was approved by the Government under Collector's office order dated 13.11.1962. 3.2 The society thereafter after getting the lay out plans for construction of houses for its members sanctioned by the Government, constructed houses on the said land. However, since the society wanted to construct a community centre/hall on a portion of the said land granted to it, it had submitted revised plans. In this plan the road of 20' wide on three sides of the pot granted to the society was deleted and that area was amalgameted with the adjoining plots. This new revised plan was approved by the Collector, Mahesana in consultation with the Dy. Asstt. Consulting Surveyor to Government under his office order dated 9.11.72 with certain conditions laid down in it. 3.3 It was further submitted that against this order, the Gurukul Co-operative Housing Society and Gurunanak Co-operative Housing Society of Mahesana had filed a revision application in the Court of Special Secretary to Government, Revenue Department, who has rejected this application vide order dated 25.4.74. 3.4 In the meantime, the Gurukul Co-operative Housing Society represented that the Sindhi Co-operative Housing Society was constructing wall in the road and has stopped the road which is used by the residents of Gurukul Co-operative Housing Society. This issue was inquired into and Sindhi Co-operative Housing Society was served with a notice on 7.1.74 to stop the construction work of a compound wall as the same was against the provisions of condition No.2 of the order dated 9.11.72 sanctioning the revised plan of Sindhi Co-operative Housing Society. 3.5 Thereafter Gurukul Co-operative Housing Society again represented that the peons working in different Government offices who have been granted plots out of Revenue S.No.37 have also constructed one wall on their side and thereby they have also stopped the road used by the inhabitants and Gurukul and Gurunanak Co-operative Housing Societies. This wall was got removed after visiting the site personally by the Collector, Mahesana and it was ordered under this office Order dated 4.5.74 to vest the 30' wide road between Sindhi Co-operative Housing Society and the plots granted to the peons out of S.No.37 in Mahesana Municipality. The Mamlatdar, Mahesana was also directed in this order to hand over the possession of this 30' wide road to the Municipality. 3.6 Being aggrieved and dissatisfied with the aforesaid decision, the plaintiff filed Civil Suit No.148/74 and 147/74 in the Court of learned Civil Judge (S.D.) Mahesana. The residents of Gurukul Co-operative Housing Society again on 22.7.74 presented one application to the Collector, Mahesana saying that the road between Sindhi Co-operative Housing Society and the plots of peons is blocked by Sindhi Co-operative Housing Society by erecting one hedge. Plaintiff society has therefore been directed on 26.7.74 to open 30' wide road immediately pending decision of the issue in question. 3.7 The State of Gujarat therefore submitted that a strip of land measuring 30' wide was kept open between the land granted to Sindhi Society and the peons out of S.No.37. This strip of 30' being used as road by the nearly societies vide the order of the Collector, Mahesana dated 4.5.74 to vest in Mahesana Municipality. This strip of land is not granted to anybody and hence nobody can claim their right over it. The order of the Collector, Mahesana dated 4.5.74 is, therefore, legal one. 3.8 It was submitted that plaintiffs have illegally and unauthorisedly constructed the said wall, which is liable to be removed. It was submitted that it is not admitted that the plaintiffs would suffer irreparable loss if an order of injunction is vacated and, therefore, the suit of the plaintiffs be decreed in this behalf. 4. The defendant no.2 Mahesana Municipality also filed reply vide Ex.26 and resisted the plaintiffs' suit as under: 4.1 It was submitted that the District Collector, Mahesana by his order dated 4.5.74 ordered that 15' from Sindhi Society and 15' from peons' society and making an aggregate wall, of 30' and thereby vested 30' wide road in Mahesana Municipality. This order was passed in view of the special conditions attached to the earlier order of the Collector and it was ordered that the said width of 30' road be handed over to the Mahesana Municipality. From that day the Municipality is lawfully in possession of the suit land in this behalf. It was submitted that the plaintiffs have no right, title or interest over the said plot and hence plaintiff suit is liable to be dismissed in this behalf. 4.2 It was further submitted that the plaintiffs have constructed wall illegally without permission and, therefore, for demolishing said wall and as per statutory powers of the Municipality and therefore it is not required that a notice be issued against the present plaintiff and there is no question of following procedure of natural justice. It is not admitted that the said order is unjust and illegal. 4.3 It was also submitted that plaintiffs' society passed a resolution to hand over the said land and said resolution was passed on 17.1.75 and, therefore, the plaintiffs have no right, title or interest in the said 20' width land and hence plaintiffs' suit is liable to be dismissed. 5. After the oral and documentary evidence led by the parties, the learned Civil Judge (S.D.), Mahesana, by his judgment and decree dated 30.4.82 pleased to hold that the order of the Collector dated 4.5.74 is not legal and valid. The learned trial Judge also held that the plaintiffs proved that the land of 15' wide out of road of 30' proposed by the Collector and have encroached the same by a compound wall without the permission of Mahesana Municipality. The learned trial Judge further held that the Collector cannot order that the land to be taken away from the plaintiffs and can order it to be vested in Mahesana Municipality. The trial Court further held that the land cannot be ordered to be resumed without due process for acquisition of land and therefore the trial Court held that the Collector's order was declared to be illegal and invalid. The trial Court therefore granted permanent injunction and held that plaintiff had no right to file suit an suit notice to the Municipality is legal and valid in this behalf. 6. Being aggrieved and dissatisfied with the aforesaid judgment and decree, the State of Gujarat filed appeal being Regular Civil Appeal No.230 of 1982 before the learned District Judge, Mahesana. The learned Appellate Judge by his judgment and decree dated 9th February, 1988, pleased to allow the appeal and pleased to quash and set aside the judgment and decree passed by the trial Court. The learned Appellate judge held that plaintiff failed to prove that the Collector's order dated 4.5.74 is illegal, unjust and invalid. In para 21 of his judgment, the learned District Judge has recorded the following findings: (1) That the order dated 4.5.1974 passed by the Collector, Mahesana is legal and valid. (2) That the appellants-plainiffs have no right over the strip of land over which they have unauthorisedly put up compound wall notwithstanding the fact that a condition was imposed in the order sanctioning the revised plan that the strip of land would be required to be kept open to sky; (3) That the society had accepted the order passed by the Collector, Mahesana on 4.5.1974 and had also passed a resolution to that effect at a meeting of its general body which was also attended by the appellants. (4) That the suit of the appellants was required to be dismissed on that ground alone. (5) That the learned trial Judge has committed an error in proceeding to decree the suit of the appellants on the basis of an assumption that the appellants were the owners of the suit strip of land and that the Collector had re-acquired the said strip of land without paying any compensation to the appellants. (6) That on the contrary, the original order of grant of the land to Sindhi Society contemplated that the Collector shall resume any portion of the said land if required for the purpose of laying or widening a road, without paying any compensation whatsoever; (7) That the said conditions were kept intact while sanctioning the revised plans submitted by the society. (8) That in that view of the matter, the appellants were not entitled to be heard before passing any order of resumption of the said land by the Collector. (9) That it is the society which was allotted/granted the said strip of land; and the society had passed a resolution accepting the order of the Collector to vest the said strip of land in the municipality. (10) That there is no breach of principles of natural justice as contended by the appellants. 7. Being aggrieved and dissatisfied with the said judgment and decree of the learned Appellate Judge, the appellants have filed Second Appeal before this Court raising two substantial questions of law which reads as under: (1) Whether the lower appellate court committed substantial error of law in holding that the suit filed before the Civil Court without exhausting the remedy provided under Land Revenue Code is barred under the Revenue jurisdiction? (2) Whether the lower appellate court committed substantial error of law in holding that the Collector can order land to be taken away from the plaintiffs and can order to be handed over to the Municipality as part of the public street without acquiring the same? 8. Learned advocate for the appellants submitted that the Collector has passed the order on 4.5.74 however before passing the order the society was not heard. It was submitted that without hearing the society the said order held that 30' land for the road vest in the Municipality. It is pertinent to note that no procedure under Land Acquisition Act and under the provisions of any other law followed and no notice whatsoever to that effect were issued to the appellant though the appellant was occupier and the owner of the land in question as on the date of passing the order. 8.1 Mr.Mukesh Patel, learned advocate for the appellants states and submits that the society had passed the resolution to apply for allotment of land before the government and the society had applied before the Government for allotment of the land on 13.11.56 for housing purpose. It is submitted that on the basis of application made by the society the Government/Collector had allotted the land of Survey No.37 of the sim of Mehsana town ad-measuring 25,509 sq.yds (5 Acre 10 Gunthas and 99 Yards) on 22.1.60. It is submitted that thereafter the said order was revised by way of final order in the year 1962 and the land allotted to the society was amended at ad-measuring 26,138 sq.yd. and the said order came to be passed on 28.2.62 (Exh.104). The plans were approved by the competent authorities on 28.2.62 (Exh.102). It is submitted that the application to the Collector was made by the society on 11.3.72 seeking permission to allot the said land originally shown as society road to the members. The appellant had become the member and allottee of the plot No.24 and 33 as well the additional land. The said resolution was passed and all respective members having adjacent plot to the society road was allotted the additional land. By virtue of the said resolution the land adjacent to the appellants plot was allotted to the appellant. The said land allotted was admeasuring 166 sq. yrds. and accordingly the area of the plot came to be of 533 sq.yds. He has invited my attention to the various documentary evidence relied by the appellants in this behalf and stated that appellants are the lawful purchaser, occupier and user of the land in question who has all right to file proceedings and he needs to be heard before passing any order with regard to the land in question. 8.2 He further submitted that appellants states and submits that the society filed a suit in the year 1973 and the panchnama had been carried out in which the possession as well existence of wall has been shown. The said panchnama is carried out on 31.12.93. It is submitted that the suit filed by the society is dismissed on ground of jurisdiction. It is submitted that the Collector had passed an order dated 7.1.74 which was address to the society but the appellant was not heard before passing such order. In reply to the said order the society had given the reply dated 19.1.74 to the said notice of the Collector dated 7.1.74 stated that the land has been allotted to the plot holders and the said land does not cover the road area. It is submitted that as per the revised plan the land in question additionally allotted to the appellant were the part of the land allotted to the society. He submitted that in view of the aforesaid facts there was no question of passing for order dated 7.1.74 and 4.5.74 by the Collector. He submitted that the possession in the year 1973-74 is of the appellant. He submitted that all these evidence have not been considered and therefore the order of the district court requires consideration. He has also relied upon the judgment reported in 1999(7) SCC 89, 1995(2) GLR 974 and also judgment reported in 2002(2) SCC 85. 9. Mr.P.K.Jani, learned advocate for the respondents submitted that this being a Second Appeal filed under Sec.100 of CPC, the appellants have not been able to prove that the Second Appeal raises substantial question of law and findings arrived at by the appellate Court is finding of fact and therefore this Court may not entertain the Second Appeal filed by the appellants in this behalf. 9.1 Learned advocate for the respondents submitted that it is an admitted position on record of the case that the portion of the land bearing Survey No.37 on which the appellants claim ownership right belonged to the Government- respondent No.1 herein and was never granted to anybody. It was further submitted that the plaintiffs-appellants are members of Sindhi Co-operative Housing Society and the land ad-measuring 26138 Sq.Yds. out of Survey No.37 was granted to the society for the purpose of constructing houses for its members by an order dated 13.11.1962 passed by the Collector, Mahesana. The society, thereafter, after getting the lay out plans for construction of houses for its members sanctioned by the Government, constructed houses on the said land. However, since the society wanted to construct a community centre/hall on a portion of the said land granted to it, it had submitted revised plans. The Collector, Mahesana by his order dated 9.11.72 sanctioned the revised plans subject to three conditions set out in the said order. Out of those three conditions, two conditions are relevant to the present purpose and, therefore, the said conditions is reproduced as under: "(2). No construction whatsoever shall be put up on the margin land of 20 feet which is permitted to be amalgamated in the plots and which forms part of a road of 20 feet. (3) If any dispute is raised by anybody in respect of the road for ingress and egress in this land, the decision taken in respect of this road by the Collector shall be binding to the society." 9.2 It was, therefore, submitted that while granting permission to construct the community hall, the Collector had stipulated a specific condition which clearly contemplated that no construction of whatsoever will be permitted to be put up on the margin land and that in case of any dispute as to the right of way, the decision of the Collector in that behalf would be binding to the society. 9.3 It was further submitted that it is also an admitted position on record that after the Collector, Mahesana by his order dated 4.5.74 had directed that a strip of land having the width of 30 feet as demarcated in the map annexed to the said order which was being used as a road by the nearby societies shall vest in the Mehsana Municipality to enable it to lay a public road. The Collector, Mahesana also directed the Mamlatdar, Mahesana to hand over vacant and peaceful possession thereof to the respondent municipality. This strip of land was not granted to anybody thereafter and therefore nobody can lay a claim of any kind whatsoever over the said strip of land. Being aggrieved by the order of the Collector, the society challenged the said order by filing a suit in the Civil Court. However, the same came to be withdrawn with permission to file a fresh suit. 9.3(A) Learned advocate for the respondent has also invited my attention to the fact that before appellate court copy of Mahesana Collector's order dated 9.11.72 sanctioning revised plan cancelling the former plan sanctioned by order dated 30.11.62 at Exh.116 was produced before the appellate court. He has also invited my attention to the fact that original proceeding book containing resolutions from 1972 and resolution dated 17.1.75 at Exh.174 was also produced before the appellate court. After that he has invited my attention to the findings of the appellate court in which the appellate court has observed (internal page 27 in the judgment) actually present plaintiffs were never allotted any land, land was allotted to Sindhi Society and Sindhi Society was informed about the said order. Present plaintiffs had already given an undertaking vide Ex.175 to the society to the effect that they are agree to pay rate of 0.45 paise per strip for the land which is adjoining to their plots. But at later point of time, if there be any difficulty, then they will abide by the society's decision and they will never build anything on the said plot and they will never make a breach of the Collector's order. 9.4 It was further submitted that it is an admitted position on record that since then the suit land is in possession and has vested in the respondent Municipality. It is clearly established that the land in dispute never belonged to the appellants who are private individuals. In fact, it was the society of which the appellants are members which had constructed the houses on the land granted to it by the Government. The society had applied to the