SCA/1151/1987 of LOHANA MAHAJAN, VERAVAL Vs VERAVAL PATAN JOINT MUNICIPALITY on 7 July 1995

ORAL JUDGMENT

The order passed by the Collector of Junagadh on 13thNovember 1986 is under challenge in this petition under Art.226 of the Constitution of India. By his impugned order, theCollector of Junagadh set aside resolutions on the agenda at items Nos. 113 to 118 passed on 31st January 1986 and stayedthe operation of such resolutions.

2. The facts giving rise to this petition move in a narrowcompass. Respondent No.1 is a municipality. It is a jointmunicipality for Veraval Patan in Saurashtra. It held itsmeeting on 31st January 1986. One of the items on the agendawas allotment of land bearing survey No. 1536 admeasuring1462.6 square meters in Veraval ('the disputed land' forconvenience. By its resolution No. 545 passed on 31stJanuary 1986 in the meeting, respondent No.1 allotted thedisputed land to the petitioner. It is a case of thepetitioner that thereafter a sale deed was also executed andits possession was taken by the petitioner. It appears thatsome interested persons moved the Collector of Junagadh witha grievance that respondent No.1 could not have allottedlands to anyone by its resolutions passed at the meeting heldon 31st January 1986. Thereupon the proceeding forcancellation of the relevant resolutions passed by respondentNo.1 at its aforesaid meeting were initiated. The petitionerappears to have come to know of the said proceedings. Ittherefore moved an application some time in August 1986through its advocate for being joined as a party to theproceeding as it was one of the allottees of respondent No.1Municipality. Its copy is at Annexure A to this petition.It appears that that application was not taken intoconsideration at all. Thereafter, by his order passed on13th November 1986, the Collector of Junagadh in exercise ofhis powers under sec. 258 of the Gujarat Municipalities Act,1963 ('the Act' for brief) set aside all the relevantresolutions passed by respondent No.1 municipality in itsmeeting held on 31st March 1986 alloting different parcels ofland to different persons including to the petitioner. Itscopy is at Annexure B to this petition. The aggrievedpetitioner has thereupon approached this court by means ofthis petition under Art. 226 of the Constitution of Indiafor questioning its correctness.

3. It is the case of the petitioner that, pursuant to theaforesaid resolution passed by respondent No.1 alloting thedisputed land to the petitioner, the necessary sale documentwas also executed and its possession was taken over by thepetitioner. It is the case of the petitioner that thereaftersome construction was also made therein. In that view of thematter, runs the submission of Shri Thakkar for thepetitioner, the Collector could not have set aside theconcerned resolution of respondent No.1 in view of thebinding Division Bench ruling of this court in the case ofRaghavbhai Arjanbhai through his Power of Attorney VasantraiPragjibhai Patel and Anr. v. Amreli Nagarpalika and Anr.reported in 1994(2( 35(2) G.L.R. 1117. As against this, Shri Shah for respondent No.2 has urged that the finding ofthe Collector in the impugned order at Annexure B to thispetition is that the land in question does not belong torespondent No.1 Municipality. In that view of the matter,According to Shri Shah for respondent No.2, the aforesaidbinding Division Bench ruling of this court isdistinguishable and the Collector's order at Annexure B tothis petition cannot and need not be upset.

4. It transpires from the impugned order at Annexure B tothis petition that the Collector has recorded a finding thatthe land in question did not belong to respondent No.1Municipality but it belongs to the Government. It howeverdoes not become clear from his order as to on what basis hehas recorded that finding. When respondent No.1 Municipalityallotted some land to certain persons, ordinarily it can bepresumed that the concerned municipality owns such land. Asa responsible local authority, no municipality would allot orgrant any land to any one unless such land belongs to it. Inthat view of the matter, it was the duty of the Collector ofJunagadh to have recorded reasons in support of his findingthat the land in question did not belong to respondent No.1Municipality but belonged to the Government. Since this isnot done, that finding cannot be accepted and the matter willhave to be remanded to the Collector of Junagadh to restorethe proceeding to file for his fresh decision according tolaw with respect to the question whether or not the land inquestion belong to respondent No.1 Municipality. Ifnecessary, an enquiry under sec. 37(2) of the Bombay LandRevenue Code, 1879 may also be instituted.

5. If the land is found belonging to respondent No.1Municipality, while deciding the validity or otherwise of theresolutions in question qua the petitioner alone, theCollector of Junagadh shall keep in mind the aforesaidbinding Division Bench ruling of this court. In case theland is found belonging to the Government, it would be opento the petitioner to apply for its allotment to the concernedauthority and such application made by the petitioner will beconsidered on its own merits uninfluenced by any other factorin the matter. Since the petitioner did apply for beingjoined as a party to the proceeding, an opportunity ofhearing may be given to the petitioner while considering thevalidity or otherwise of the resolution granting land infavour of the petitioner.

6. In the result, this petition is accepted to the extentindicated in this judgment. The order passed by thecollector on 13th November 1986 under sec. 258 of the Act atAnnexure B to this petition is quashed and set aside qua thepetitioner. The matter is remanded to the Collector of Junagadh for restoration of the proceeding qua the petitionerto file and for his fresh decision according to law in thelight of this judgment of mine. Rule is accordingly madeabsolute to the aforesaid extent with no order as to costs.The petitioner is directed not to transfer the disputed landin any manner in favour of anyone.