Gujarat High Court
Master Silk Mills Pvt Ltd vs State Of Gujarat on 20 October, 2004
Author: Jayant Patel
Bench: Jayant Patel
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 14546 of 2003
with
SPECIAL CIVIL APPLICATION No 15075 of 2003
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MASTER SILK MILLS PVT LTD
Versus
STATE OF GUJARAT
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Appearance:
1. Special Civil Application No. 14546 of 2003
MR AJ PATEL for Petitioner No. 1
Mr.Gori, Asst.GOVERNMENT PLEADER for Respondent No. 1-2
RULE SERVED for Respondent No. 1
MR RM CHHAYA for Respondent No. 3
2. Special Civil Application No. 15075 of 2003
Mr.S.B.Vakil withMR RJ OZA for Petitioner No. 1
Mr.Gori, Asst.GOVERNMENT PLEADER for Respondent No. 1
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CORAM : HON'BLE MR.JUSTICE JAYANT PATEL
Date of Order: 20/10/2004
ORAL ORDER
Heard Mr.Patel appearing for the petitioner in SCA No.14546/03 and Mr.S.B.Vakil appearing with Mr.Oza for the petitioner in SCA No.15075/03, Mr.Gori, Ld.AGP for the State authorities and Mr.Chhaya for respondent No.3-Corporation for the purpose of confirmation of interim relief.
2.Upon hearing the learned counsel for the parties, it primafacie appears that in view of the decision of the Apex Court in the matter of Bhavnagar Municipality vs Union of India and another reported in AIR 1990 SC 717 so far as the land over which the construction were there as on the date when the Hazoor Resolution No.37, dated HC-NIC Page 1 of 5 Created On Thu Jan 26 02:13:59 IST 2017 19.1.1948 came to be issued the same continued to be of the ownership of the State whereas so far as the lands, which were open, prior to the same were transferred to the Municipality, which was Bhavnagar Municipality at the relevant point of time, and now, Bhavnagar Municipal Corporation. It further appears that in the proceedings of SCA No.15075/03 in the dispute amongst the beneficiaries of the properties as Public Interest Litigation, the power to grant permission for change of use was held by this court with the corporation. It further appears that as per the interim order, dated April 26, 1993 passed by this court (late Hon'ble Mr.Justice S.D.Shah) in CA No.1368/1993, the activity of construction including the demolition of the theatre was permitted.
3.Thereore, it is the case of the petitioners of SCA No.15075/03 that the construction is made and the order of the Dist.Collector which is impugned be stayed in toto. Mr.Gori, Ld.AGP submitted that in the earlier litigation between the petitioners of SCA No.15075/03 and other petitioners the State of Gujarat, Revenue Dept was not the party to the proceedings and therefore any observations of this court may not be read as binding to the State of Gujarat, Revenue Dept.
4.Primafacie, it appears that in the Public Interest Litigation the State was joined as party but it appears to be the Urban Development Dept but not the Revenue Dept. What will be the final effect if one department of the State Govt is represented and the other department, i.e. Revenue Dept was not impleaded as party to the proceedings shall be decided at the time of final hearing. However, at this stage, so far as the SCA No.15075/03 is concerned, the Dist.Collector has passed the order of registering the property in the property card as of the State Govt in place of Corporation and has further ordered for the proceedings under section 79A of Bombay Land Revenue Code.
5.So far as the petitioner of SCA No.14546/03 is concerned, it appears that the lease was executed prior to Hazoor Resolution, dated 19.1.1948 for the construction of silk mill and on the date when the aforesaid resolution came to be passed by the then Bhavnagar State, the construction was there over the land in question. As such, same situation also prevails for the petitioner of SCA No.15075/03, but the facts can be HC-NIC Page 2 of 5 Created On Thu Jan 26 02:13:59 IST 2017 slightly distinguishable because of the earlier litigation and the observations made therein subject to the contention of the State Govt in the present group of petitions that the Revenue Dept of the State Govt was not party. Further, it appears that as under the draft development plan as per the provisions of Gujarat Town Planning and Urban Devp.Act the property in question was declared for the use of commercial purpose and the corporation has granted permission but the Dist.Collector has initiated the proceedings on the basis that the power vests with the State Govt and not with the Corporation.
6.Primafacie, it appears that if on the date of Hazoor resolution in the year 1948, the property in question was with construction, it would vest with the State Govt and would continue to vest with the State Govt. Therefore, even if the power to grant permission for change of use vests with the State Govt, and if the petitioner is desirous to use the property in accordance with the draft development plan, as per the provisions of Gujarat Town Planning & Urban Devp.Act, such use would be in consonance with the provisions of the said Town Planning Act because as per the scheme of the said Act, it is obligatory on the part of the holder of the property to use the same in consonance with the purpose declared in the draft development plan.
7.It also primafacie appears that the Corporation proceeded on the basis that it has power to permit the change of use since the property continues to vest with the corporation and it has actually granted permission. If the holder of the property has acted upon such permission of the corporation, it can not be said that such an approach, on the part of the authority of the State vis a vis the authority of the Corporation qua the property in question, is such which would warrant harsh action of forfeiture of the property. At the same time, until the permission is so granted by the State Govt in accordance with law, if the development of the land is permitted it may result into creating not only irreversible situation but it may also result into allowing new equities to be created and as a consequence thereof it may not be possible for this court to finally grant the relief or to dismiss the petition without wiping out the fact of rights created pending the petition and therefore as per settled principles of law over and above granting interim relief, the property should be allowed to be in the same position as it has existed. Such will be the case of SCA No.14546/03 HC-NIC Page 3 of 5 Created On Thu Jan 26 02:13:59 IST 2017 subject to clarification and directions as stated hereinafter.
8.For the petitioners of S.C.A.No.15075/03 as the activity of construction including the demolition was in pursuance of the order passed by this court as referred to hereinabove and as it has been stated at the Bar that the construction is already over and the shops are already allotted, the impugned order for change of entry in the property card can be said to be seriously prejudicing the rights of the petitioners and if the petitioners are desirous to seek relief against proceedings for breach of condition, the statusquo existing as on today over the property in question also deserves to be maintained subject to clarification and directions as stated hereinafter.
9.Mr.Vakil, Ld.counsel for the petitioners of SCA No.15075/03 submitted that the Dist.Collector has no jurisdiction to examine the title of the property and/or for cancelling the mutation under section 211 read with Rule 108(6) of Gujarat Land Revenue Rules and he also submitted that he has no power or authority to order for initiation of the proceedings under section 79A of the Bombay Land Revenue Code and he also submitted that even otherwise also unreasonable time has passed and there is delay operating against the same. In my view, such aspects will be examined finally, but in view of the primafacie observations made hereinabove, if the property is continued to vest with the State Govt, it can not be said that there is inherent lack of power with the Dist.Collector for proceedings under section 211 read with Rule 180(6) of Gujarat Land Revenue Rules. Further, the proceedings under section 79A are only ordered to be initiated and have not yet commenced.
10.In view of the above, I am inclined to pass the following order:
(i)Ad interim relief granted earlier in SCA No.14546/03 of maintenance of statusquo of the property in question shall continue as interim relief with further observations that it will be open to the petitioner to move appropriate application before the State Govt for permitting change of use in view of declaration in draft development plan as per the provisions of Gujarat Town HC-NIC Page 4 of 5 Created On Thu Jan 26 02:13:59 IST 2017 Planning & Urban Development Act, and if such an application is made by the petitioner, the same shall be considered in accordance with law as early as possible preferably within three months from the date of receipt of such application. In the event if the permission is so granted by the State Govt and if the petitioner is agreeable to such permission, as may be decided by the State Govt, the petitioners will be at liberty to further use the property accordingly. In the event the permission is refused or the conditions imposed by the State Govt are not acceptable to the petitioners, it would be open to the petitioners to place the order before this court in the proceedings of this petition and move this court for the modification and/or for final hearing of the main petition.
(ii)The ad interim relief granted in SCA No.15075/03 is modified to the extent that the statusquo as existing of the property in question shall be maintained with further observations that it would be open to the petitioner to move the State Govt for change of use or other consequential purposes in view of the earlier litigation and also the observations made by this court in the earlier proceedings and if such application is move by the petitioners before the State Govt, same shall be considered in accordance with law as early as possible preferably within three months from the date of receipt such application. In the event if the permission is so granted by the State Govt and if the petitioner is agreeable to such permission, as may be decided by the State Govt, the petitioners will be at liberty to further use the property accordingly, and in the event the permission is refused or the conditions imposed by the State Govt are not acceptable to the petitioners, it would be open to the petitioners to place the order before this court in the proceedings of this petition and move this court for the modification and/or for final hearing of the main petition.
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