Gujarat High Court
Bipinchandra P. Patel vs Anand Area Deve Authority on 23 April, 2001
Equivalent citations: (2001)4GLR3265
JUDGMENT B.C. Patel, J.
1. The present petition is filed under Article 226 of the Constitution of India for quashing and setting aside the Resolution dated 04/06/1991 passed by Anand Area Development Authority (hereinafter referred to as `the AADA'), Respondent No.1, and approved by the President, Anand Municipality, Anand, Respondent No.3, on 12/06/1991. The petitioners have further prayed that the document entered into between one Jivaben and others and the Senior Assistant of the AADA, Respondent No.1, in pursuance of the letter dated 14/06/1991 be cancelled. The petitioners have further prayed for issuance of direction against the Respondent No.4 to immediately hand over vacant and peaceful possession of the entire plot of land being part and parcel of Final Plot No. 270 of Town Planning Scheme No.4, Anand, to the Anand Municipality, Respondent No.2. The petitioners have further prayed to direct the State Government to take appropriate action against Respondent Nos. 1,2 & 3 as also against Officers of the Respondent No.7, the Collector of Kheda District.
2. The petitioners, in their petition, pointed out that the first petitioner, at the relevant time, was the Chairman of Anand People's Co-operative Bank Limited, Anand and Municipal Councillor and is also a practising lawyer. The second petitioner is also a practising lawyer. On realising that there is a land scam, they have approached this Court by placing necessary material on record.
3. The facts, briefly, leading to the present proceedings, are as under :
4. The land bearing Survey No. 1934/4, admeasuring about 2-10 acres, which was assessed at Rs.11-2-0 situated at village Anand, was in the names of Bhaijibhai Nanabhai, Bhathibhai Surabhai etc. before 1958 on new tenure conditions under the Bombay Land Revenue Code. Shri Lallubhai Jenabhai and Mangalbhai Surabhai were in possession of the aforesaid parcel of land and they stated before the Revenue Authority that they had mortgaged the land to Shri Vajabhai Ramabhai. Thus, the Revenue Authority namely; Prant Officer, Anand, considering the facts and circumstances, arrived at a conclusion that there was a clear breach of condition and, therefore, ordered that the land be forfeited to the Government and entered as Government waste land. The Prant Officer further directed that necessary mutation entry be effected in the village record and entry be made in the New Tenure Land Register. The Prant Officer observed in his order that if original occupants, namely; Bhaijibhai Nanabhai and Bhathibhai Surabhai are willing to get the possession of the land, then, on condition of payment of occupancy price equal to 15 times the assessment plus the cost of trees, huts etc. which was fixed at Rs.331/- plus local fund, cess thereon, the same be handed over, considering the first default on the part of the original occupants and also as the land was required for cultivation for maintenance of the family. The Prant Officer assessed the amount and granted the land to the original occupants by way of regrant on inalienable and impartible tenure conditions on payment of Rs.167-14-0 as occupancy price, equivalent to 15 times assessment plus the cost of trees etc. at the rate of Rs.331/- plus local funds, cess thereon, subject to further conditions, namely; (i) that the grantees shall take soil conservation measures in consultation with the Agriculture Department; (ii) that the grantees shall not allow the land to be uncultivated for the consecutive years failing which the land shall stand forfeited to the Government; and, (iii) that the grantees shall execute an agreement in Form I(i) within a period of two months from the date of grant. As the amount as aforesaid was not paid and the conditions as aforesaid were not fulfilled, the land was forfeited to the Government. Nothing was done by the aforesaid grantees after the order was passed on 24/01/1958 and, therefore, the land, which was forfeited as per the order made by the Prant Officer, was entered in the relevant record in the name of Government. There was no regrant as per the order of the Prant Officer.
5. The State Government under Resolution dated 03/03/1964 was pleased to grant revenue-free-land, admeasuring about 2 Acre 10 Guntha of Survey No. 1934/4 of Anand Taluka, Anand, District valued at revenue-free holding at Rs.7905/- for the purpose of construction of School Building in Mangalpur in Anand subject to conditions laid down in Rule 36(1) of the Land Revenue Code, in favour of Anand Municipality. In view of this resolution, the Collector on 13/08/1964 addressed a letter to the President, Anand Municipality, the copy of which is produced at Annexure H. Reading the letter, it is very clear that the school building was to be constructed within a period of 2 years from the date of handing over the possession of the land. The plans of the building were to be approved by the Collector and no addition or alteration was permissible without prior permission of the Collector. The School should be open for all eligible pupils. It is specifically mentioned in the condition No.4 that land and building thereon should be used for the purpose for which the grant was made and for no other purpose. This grant was again subject to condition, i.e. the continued recognition of the School by the Education Department. After the Collector entrusted the land to the Municipality, the building was also constructed by the Anand Municipality. In view of this grant, since 1964, the land stood in the name of Anand Municipality.
6. A Scheme was framed for Anand Town under the provisions contained in the Bombay Town Planning Act, 1954 (for short referred to as the `Planning Act'). A notification was issued for sanctioning the scheme on 21/07/1978, the copy of which is produced at Annexure-A. The Government of Gujarat, in exercise of the powers conferred by Subsection (2) of Section 28 of the Planning Act, sanctioned the draft Town Planning Scheme, Anand, No.4 which was submitted to it by Anand Municipality. Under the Planning Act, a Town Planning Officer for the scheme was appointed who submitted to the Government of Gujarat the Town Planning Scheme Anand, No.4 (Final) as required under Subsection (2) of Section 43 of the Planning Act. In exercise of the powers conferred under the provisions contained in the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the `Development Act'), the Government of Gujarat sanctioned the said final scheme and fixed the 11th day of September, 1978 as the date for the purpose of Clause (b) of Subsection (2) of Section 65 of the Development Act.
6.1 The petitioners have placed on record Form B (Rule 17 & 29 of the Bombay Town Planning Rules), which is at Annexure B to this petition, wherein at Sr. No.2, name of the owner of Survey No. 1934/4 admeasuring 9105 sq.mtrs. is shown as "Anand Municipality". Final Plot No. given is 270 and area is reduced to 8017 sq.mtrs. In remarks column, it is specifically mentioned that "the same is to be used only for the school purpose. The owners were allowed to remove fencing and gate at their cost. The use of the plot is wholly beneficial to the scheme area. No incremental contribution was charged." The copy is a xerox copy of true copy signed by the Senior Assistant. In view of the Town Planning Scheme, the entire piece of land was reserved for the school purpose and in the name of Anand Municipality.
7. As the price of land was increasing in the area, it is said that the original occupants submitted a copy of the order made by the Prant Officer on 31/01/58 along with an application dated 12/09/1990 before the Talati. In Form No.6, the substance of the order made by the Prant Officer in the year 1958, has been indicated and the same is signed by the Talati. In the last column of remarks, it is noted : "Produce original order Sd.27/10." It is further noted : "In view of the order made by the Prant Officer `Sanctioned dated 13/12/1990' Sd/- City Deputy Mamlatdar, Anand." The copy of the said entry of Form No.6 is placed on record at Annexure D. 7.1 It appears that thereafter on 29/11/1990, before entry was sanctioned by the Prant Officer, another application was submitted. In Form No.6, it is mentioned that the names of Bhathibhai Surabhai, Mangalbhai Surabhai, Mohanbhai Jenabhai, Hathibhai Jenabhai and Lallubhai Jenabhai have been entered as the occupiers but they have expired. A `pedigree' was given with an application requesting that names of Jivaben widow of Budhabhai, Vinubhai Budhabhai, Manibhai Hathibhai, Respondents No.40 to 42, be entered. This entry has been sanctioned on 11/1 by City Deputy Mamlatdar. (Obviously on 11/01/1991, as the application was given on 29/11/1990 and the copy was made from original on 02/02/1991). The said Form No.6 is placed at Annexure E. 7.2 If the persons were not alive, how the application was made on 12/09/1990 and was granted on 13/12/1990 as reflected in Form No.6 at Annexure D ? It is required to be noted that soon thereafter, on 02/02/1991, entry was made by the Talati on an application along with (i) a true copy of a Will purported to have been executed by one Gajraben, widow of Mohanbhai Jenabhai bequeathing her 1/3 (one-third) share, and (ii) an affidavit indicating that by an oversight the Will, purported to have been executed on 02/01/1990 by mother-in-law of Jivaben, widow of Budhabhai, bequeathing her property to Shashikant Jethabhai, Respondent No.43, could not be produced. In Form No.6, it is noted as "Patel Shashikant Jethabhai rights acquired under the Will."
7.3 On 29/01/1990 names of (1) Jivaben, widow of Budhabhai; (2) Vinodbhai Budhabhai; and (3) Manibhai Bhathibhai came to be entered without any documentary evidence. If the order made by the Prant Officer in 1958 (Annexure-G) is perused, it is clear that the grant was in favour of Bhaijibhai Nanabhai and Bhathibhai Surabhai, and not in favour of Lallubhai Jenabhai or Mangalbhai Surabhai. The entries made by the Talati without relevant documents would not confer any title. No Probate or Letter of Administration was produced. In one case, even Will has not been produced. Again entries made in revenue record for fiscal purpose would not confer any title. That aspect has been lost sight of. Whether the entries made in land record about vesting of land in Municipality can be altered or not ? After the Town Planning Scheme became final, had the Talati any right/authority to make entry contrary to the entries which became final in view of the provision of law, is the real question.
7.4 After this entry was made on 08/04/1993, the City Deputy Mamlatdar, Anand approved the entry. On 07/05/1991, in view of the application, entry has been made in the village Form No.6, the copy of which is annexed at Annexure I. 7.5 Reading the same, it appears that Manibhai Hathibhai, Jivaben, widow of Budhabhai Mohanbhai, and Vinubhai Budhabhai Gohel executed a document in favour of Shashikant Jethabhai Patel for Final Plot No. 270 of Town Planning Scheme No.4. (Admeasuring 5344.66 sq.mtrs. being 2/3 {two-third} of 8017 sq.mtrs.). It is further mentioned that on 30/01/1991, by a Registered Sale Deed on payment of Rs.1,45,000/-, a document was executed before the Sub-Registrar. The City Deputy Mamlatdar on 26/6 approved the entry.
8. It seems that thereafter, with a view to grab the land, AADA was moved. A copy of the resolution signed by the Chairman of the AADA is placed on record at Annexure II, by one Bhikhabhai Dahyabhai Patel, respondent No.15. He has filed an affidavit on behalf of respondent Nos. 8 to 14, respondent Nos. 16 to 39 and for himself. We are not referring the copy of newspaper "Western Times" which is at Annexure I. Annexure II is a relevant document and, therefore, relevant part is discussed here :-
"Unanimously, Resolution No. 161 was passed by respondent no.1 on 12/06/1991 and was forwarded to the President of Municipality."
8.1 Reading that resolution, it appears that Senior Assistant submitted a report. Jivaben, widow of Budhabhai, though she ceased to be the owner of the property on execution of Registered Sale Deed on 31/01/1991, on 15/05/1991 submitted an application. She requested in that application to put her in possession of land being F.P.No. 270 on the same position as it was. It was further mentioned that Revenue Survey No. 1934/4 admeasuring about 2 Acre & 10 Guntha was covered by Town Planning Scheme No.4 and the original Plot No. 249, admeasuring about 9105 sq.mtrs. was given Final Plot No. 270, admeasuring about 8017 sq.mtrs. It was stated that the said land is in the name of Anand Nagar Palika and while finalising the Town Planning Scheme, the Town Planning Officer, considering the land to be a waste land, put it to the use of Nagarpalika for the use of the school. This statement is contrary to the record. It is a false statement as the land bearing Survey No. 1934/4 was granted to the Anand Municipality in 1964 (vide Annexure-H). It is false to state that the Town Planning Officer, considering the land to be a waste land put it to the use of Nagarpalika. It was further stated that at the relevant time in Form No. 7/12, in the second line, the name of Hathibhai Jenabhai was shown. The Town Planning Officer, either by oversight or for any other reason, did not consider the same and no further proceedings were conducted. The applicant, Jivaben, has produced documentary evidence to show that the land, which was shown as the waste land, was originally in their names. By the application, she requested to hand over the possession of the plot. The resolution further refers that in the Town Planning Scheme No.4, Final Plot No.270 is in the name of Anand Nagar Palika and school building is constructed thereon. In view of this situation, there was discussion amongst the Town Planning Officer, Shri Vinodbhai J. Bhatt, the President and Chairman. The applicant stated that the land used for the school be kept by Anand Municipality without any compensation and the remaining area admeasuring about 6060 sq.mtrs. be handed over to the applicant without any betterment charges. It is further mentioned in the resolution that in view of the precedent, there is no legal objection, therefore, as indicated in the map, 1957 sq.mtrs. of land of Final Plot No. 270 on which the school building is erected be retained by executing a document without making any payment and the remaining land admeasuring about 6060 sq.mtrs. be handed over to the applicant without betterment charges. The said resolution was forwarded to the President. On 14/06/1991, AADA, through its Senior Assistant, addressed a letter conveying the aforesaid resolution. The copy of the said letter is at Annexure-J. It seems that after this, under the provisions contained in the Development Act, the President of AADA, on 27/11/1991, issued development permission bearing No. 482 in favour of Patel Shashikant Jethabhai, a copy of which is placed on record at Annexure-III.
9. It appears that thereafter, the Collector was moved who made an order on 06/07/1992, the copy of which is produced at Annexure-F. The Collector has mentioned in the order that 1/3 (one-third) land of Survey No. 1934/4 (T.P.S. No.4, F.P.No.270) is in the name of Shashikant Jethabhai while 2/3 (two-third) of the plot is in the name of Manibhai Hathibhai. The entire piece of land is new tenure land. 2/3 (two-third) part of the land i.e. 6060 sq.mtrs. is in the name of occupier Manibhai Hathibhai. The Power of Attorney Holder, Navnitbhai, submitted an application on 24/07/1992 for conversion of land from agricultural land to non agricultural land. Order further reveals that the Mamlatdar, Anand, after making an enquiry through Deputy Collector, Anand, made a proposal. The order further reveals that in the year 1958, an order of grant was made for which entry was made on 12/08/1990. Before that application, dated 24/07/1992, the so-called transfer in favour of Shashikant Patel took place on 30/01/1991. The said entry with regard to this transfer was made on 07/05/1991. The matter was taken in the Revision and that entry was quashed by an order dated 07/04/1992 directing that the record should be brought in the original position, i.e., entry should be in the name of joint occupants. The Collector has observed in his order that the applicants are in possession since more than 20 years. The Collector was aware that there was a school building and the entire piece of land is in the name of Anand Municipality since long. The Collector was also aware that as per the record of the Town Planning Scheme, the entire piece of land is in the name of Anand Nagar Palika. From the order, it appears that while passing the order, he was aware that AADA by resolution no.161 made an order for return of land to the applicants. It is further observed in the order that near the land, there are residential houses and it was not permissible to use the land for agriculture. The applicant before the Collector in the application stated that for sale in favour of Bhikhabhai Dahyabhai, there was an oral understanding between them. The applicant stated that it is a new tenure land and he is willing to make payment and he will abide by all the conditions. The applicant stated before the Collector that after the sale of land, the applicant will have no land and from the proceeds of sale, he shall carry on business. It is also mentioned that as per Panchnama, the value of land would be Rs.175/- per sq.mtr. The Deputy Town Planner, Nadiad, has fixed Rs.250/- sq.mtr. as price of the said land and considering this, value of the land as per the Collector's order was Rs.15,15,000/- and considering 70% premium, Rs.10,60,500/- was required to be paid which the applicant paid on 02/07/1992. In view of this, the Collector permitted sale of land admeasuring 6060 sq.mtrs. out of Final Plot No. 270 in favour of Bhikhabhai Dahyabhai for construction of residential houses. The order is with other conditions, such as; (i) within a period of six months, under Section 45 of the Land Revenue Code, permission will have to be obtained from the Competent Authority; (ii) if on sale, the price is realised more than stated then, difference of the amount will have to be deposited in the Government Treasury; (iii) the land shall be utilized for the purpose of residential houses and within a period of one year; non-agricultural operation will commence and will have to be completed within a period of three years (i.e. construction will commence within a period of one year and will have to be completed within a period of three years). In case of breach of conditions, permission shall stand cancelled automatically. The contesting respondents namely; the purchasers of the plots, have also placed on record a copy of the permission referred along with the conditions at Annexure-V. The contesting respondents have also produced on record Annexure-VII, a copy of an entry from the Register maintained for entries with regard to the Registered document. It shows that Manibhai Hathibhai Gohel, Jivaben Budhabhai Gohel, Vinubhai Budhabhai Gohel, Shashikant Jethabhai Patel, through their Power of Attorney Holder, Navnitbhai Patel, executed a document in favour of Bhikhabhai Dahyabhai on 14/07/1992. The Sub-Registrar, Anand, has certified that entry on 15/07/1992. Permission letter was issued by the Collector on 14/07/1992 for the purpose of development of land. On 28/07/1992, the Power of Attorney Holder, Navnitbhai Harmanbhai Patel was granted permission of revised development plan.
10. The President of Anand Nagar Palika in his affidavit has stated that " I say that the Anand Area Development Authority has a statutory composition as provided under Section 6 of the Town planning Act. The Anand Municipality has been designated as area development authority under the aforesaid provision. The Municipality has set up a Planning Committee consisting of six members elected by the General Board of the Municipality, of whom one has been designated as Chairman and the Chief Town Planner, i.e. to say the Town Planning Officer, Kheda District, Nadiad in the present case." The president has positively stated that he was not the member of the AADA. He has stated that he was consulted by the Chairman of the Development Authority. He has stated that "land is required to be restored to the original owner, I informed the Chairman that in the event of the land being required to be restored, the interest of the Municipality and public interest in general should be protected by specifically providing that the Municipality should be allowed to retain that part of the land on which there is a school of the Municipality. I further insisted that the Municipality should not be required to pay any consideration for the aforesaid part of the land. On my suggestion, therefore, the aforesaid stipulation was incorporated in the resolution passed by the Development Authority on 3rd June, 1991." He has further stated that beyond this, he had no role to play in the whole chapter.
11. On behalf of the State Government or the Collector, no affidavit is filed. However, on behalf of the AADA, one Shri Hashitkumar Viththalbhai Barot has filed an affidavit. Though the petitioners have come out with the specific case that after the order passed in 1958, 15 times assessment, as appeared in the entry, have never been paid by the persons who were required to pay for regrant, the Collector, respondent No.7 has not denied the same. No document has been executed in pursuance of letter dated 14/06/1991. (That is to say, as per the resolution, document was to be executed in favour of the Municipality for the land where the school building was erected). There is nothing on record to show that the amount was paid as per order or that three conditions as mentioned in the order made by the Prant Officer in the year 1958 were fulfilled at any point of time. It is an admitted position that the persons who approached the Collector and AADA were not in possession of the land. Admittedly, the application was submitted to put them in possession which is clear from the resolution. Under the circumstances, it is very clear that after the year 1958, they were not in possession. Yet they have come with the case by joining hands with others.
12. At this stage, it would be relevant to refer an affidavit filed by the Senior Assistant on behalf of the AADA. He has come out with the version that "It is pursuance to an erroneous order of the Collector granting Survey No. 1934/4 to Anand Municipality for the purpose of School that it was entered into the revenue record in the name of Anand Municipality. It was so done because of the erroneous entry in the revenue records." One can understand that if the explanation was placed from the Office of the Collector, but, how the Senior Assistant can make such averments ? Again the order at Annexure-H, if perused, it becomes clear that on 13/08/1964, it is not the Collector himself who has made an order but, in view of the resolution of the Government, dated 31/03/1964, by which the Government was pleased to grant revenue-free-land bearing Survey No.1934/4 in favour of the Anand Municipality, the Collector merely carried out the directions of the Government indicated in the Resolution. Therefore, it is absolutely incorrect and false to state that there is an erroneous order of the Collector granting land to Anand Municipality. The Senior Assistant of AADA has further stated in his affidavit that "when the entry came to be corrected after correct orders were brought to the notice of the Authority by the persons affected, the Authority rescinded and corrected the matter as a result in respect of disputed ownership and consequential orders came to be made." It is required to be noted that the Senior Assistant is making absolutely incorrect statements. He has come out with the case that there was erroneous entry in the revenue record. When they were corrected, the authority rescinded the entry. Under what provisions of law, the AADA was authorised to pass such a resolution is not at all explained. Senior Assistant has failed in explaining as to how Anand Municipality erected a school building if Jivaben and others were in possession in 1964.
13. He has further stated that the true owners of the land were persuaded and that portion of the land was allowed to remain with the Municipality for school purpose. After the TPS became final and it became part of the Act, under what provisions, AADA acted, is not at all explained. The President of the AADA has not filed an affidavit. As a matter of fact, it was for him to file an affidavit, but, it appears that after realising that the act is contrary to the provisions of law, the affidavit has not been filed. The Senior Assistant has come out with the case that it was not part of the development scheme under Section 52 of the Act. He has further denied that the land was proposed to be acquired and reserved for public purpose under the scheme but it was so designated only because of the order of the Collector granting the same to the Municipality under the specific conditions. It is required to be noted that under the TPS, it is for the authority to consider independently and after applying mind, the Authority has to keep the land reserve for a particular purpose. After the Town Planning Scheme being sanctioned and implemented, the Senior Assistant had no business to say that merely because the Collector granted the land to the Municipality, it was acquired and reserved for public purpose. Earlier, we have indicated that the resolution made by the Government in the year 1964 was communicated to the Collector and the Collector has not passed any order granting the land to the Municipality. The Senior Assistant of the AADA has further stated that the order turned out to be erroneous and illegal in as much as the said land was not Government land when the order came to be passed by the Collector because of the erroneous entry in the revenue record ignoring the order of the Prant Officer, Anand, on 24/01/1958. It is required to be noted that after the order was passed, the occupants who committed breach were required to fulfill certain conditions including making of payment as mentioned in the order and entering into an agreement in Form I(i) within a period of two months from the date of grant. Only after the payment, the question of regrant of the land to the original occupants would arise and the order was subject to further conditions which are specifically mentioned in the order. This Senior Assistant conveniently kept mum about the order with conditions and whether any amount was paid which was required as per the order or whether the conditions were fulfilled or not. In fact, there was no payment and none of the other conditions were complied with resulting in there being no regrant. The order dated 24/01/1958 was a self limiting one and exhausted itself. Even in the year 1990 or thereafter, no amount has been paid, therefore, there is no question of regrant and thus, without verifying the record and facts, the Senior Assistant has filed an affidavit only with a view to support the land scam. The Senior Assistant has acted as if he was sitting in appeal over order made by the Prant Officer stating that the order was illegal. How the Officer of the AADA can deny the land vesting in Anand Municipality under the Scheme and can say that it was so entered because of erroneous revenue entry. In our opinion, Senior Assistant was required to confine himself with regard to the scheme and not with regard to the order made by the Prant Officer or the Collector as he had no personal knowledge about the procedure followed, the order carried out and conditions as per order were fulfilled or not.
14. It is contended by the respondent no.3 that the present petition is not maintainable as a Public Interest Litigation. According to deponent, as the subject matter has no connection with the section of people belonging to either illiterate or poor class who cannot defend their rights, the present petitioners cannot file this petition. The deponent, Hashitkumar V. Barot, has stated that it is misnomer to call this petition to be a petition in the nature of Public Interest Litigation. It is required to be noted as to what the learned single Judge has expressed with regard to the Public Interest Litigation when the petition is filed by a councillor.
15. In the case of BHAGUBHAI H. DEVANI VS. PORBANDAR MUNICIPALITY AND OTHERS reported in AIR 1984 GUJ. 134, the learned Single Judge (A.P.Ravani, J. as he then was) of the Gujarat High Court observed as under:
"He (the Councillor) represents a section of the people who have reposed confidence in him believing that he will safeguard their interests as far as the affairs of the municipality is concerned. It is his duty to see that the Municipality acts in the best interest of the people. It is also his duty to see that the Municipality acts in accordance with law. Apart from the fact that whether he has been actuated by the high motives of public interest litigation or not, the fact remains that by virtue of his office as Councillor, he is required to perform his duties as stated above. He will be answerable to the people if he fails in the discharge of his duties. Therefore, it cannot be said that the petitioner who was an elected representative of the people and who was a sitting councillor at the time of filing of the petition is a busy body and that he is an intermeddler and a foreigner so far as the affairs of the Municipality are concerned. Further, as per the provisions of the Gujarat Municipalities Act itself the municipal government vests in the municipality. (See Section 44(1) of the Act). A Municipality means the entire general body meaning thereby all the councillors of the Municipality, who constitute the general body of the Municipality. Thus, the petitioner is a part of the Municipality. As per the statute itself, the municipal government vests in the Municipality. Therefore, he is also a part of the governing body. When he feels that the Municipality is not acting in the best interest of the society and in accordance with the provisions of law, certainly he will be a person who can be said to be an aggrieved person though he may not have direct or indirect interest in the subject matter which is to be decided by the Municipality or which is a matter of dispute."
"In democratic form of Government existence of political party cannot be denied. Therefore, in such cases, it is bound to happen that a person who is in public life and a member of any political party or group may have certain other motives also. Such motives may be political or may not be political. They may be express or implicit. Sometimes such motives may have been directly articulated or may be hidden and, therefore, difficult to be unearthed by simple exercise of reading the averments in a petition. But in such cases, this aspect should pale into insignificance and should not be given over much importance. The paramount consideration should not be, what are the merits of the contention raised by the petitioner ? Will it not have repercussions on the public interest? Will it not serve the interest of a sizable section of the society ? Will it not be in the interest of society to see that the property belonging to the public at large is disposed of so as to subserve the common good and best interest of the society and therefore be dealt with in accordance with some known principles of law and without arbitrariness ? In the instant case strictly speaking the petition cannot be termed as a Public Interest Litigation but it pertakes the character of a public interest litigation. The question to be resolved will have effect on the entire society, meaning thereby, it is going to affect the entire population of the town. All the sections of the society will be affected by the distribution of land in a society where the problem of providing housing accommodation to the people is acute. Hence, the manner and method of distributing of land by public institution is surely a question which pertain to all the member of the society including the poor, ignorant, as well as socially and economically backward people. As stated hereinabove, motive of the petitioner, though relevant, cannot be said to be a determining factors as regard the maintainability of the petition is concerned. ..... Be it noted that the respondent Municipality is a public body, it is charged with a duty to act as `trustee' in respect of its property. It is further "state" within meaning of Article 12 of the Constitution. The respondent Municipality cannot take shelter under the plea that, because the motive of the petitioner is actuated by political considerations, the petition filed by him should not be entertained. In such cases what matters is the merit of the plea not the motive behind it."
In view of this, the petitioners are justified to challenge, by a writ petition, the transfer of land by the Municipality, Collector and AADA.
16. The learned Counsel appearing on behalf of the Anand Urban Development Authority was not in a position to support the resolution made by the AADA and was not in a position to make any submission in support of what the Senior Assistant has stated in his affidavit. The learned Counsel appearing on behalf of the Anand Municipality submitted that land vested in the Municipality in view of the resolution made by the State Government in 1964 and not by the order of the Collector, therefore, there was no question of any erroneous entry as suggested by the Senior Assistant. On behalf of the petitioners and the Municipality, it was submitted that after forfeiture of the land in the year 1958, amount as per order made by the Prant Officer, was not paid and conditions imposed were not fulfilled and, hence, there was no question of regrant as per order. After the year 1958, the occupants never fulfilled the conditions within stipulated time. The said time was never extended and, therefore, the land vested in the Government. After vesting in Government, no action was initiated by the persons who were in occupation. Considering the public purpose, in the year 1964, the State Government by a Resolution granted land to Anand Municipality with conditions. After Anand Municipality took possession of the land, it erected a school building in the year 1964, but, so-called occupants never objected. After Town Planning Scheme became final, so-called occupants never objected at any stage. We have examined these submissions. It is clear from the record that in view of the order made by the Prant Officer in the year 1958, the amount was not paid and, therefore, there is no question of original occupants to be treated as the occupants on regrant. Regrant was on an inalienable and impartible tenure condition on payment of amount mentioned in the order. The occupancy price was not paid. There is no question of declaring original occupants as the persons entitled to possession of the land after the TPS came into force. The grantees have not executed the agreement in or after year 1958 as per the order. They have made no grievance at any point of time. After the year 1958, the land stood in the name of Government as waste land, and thereafter, from the year 1964 in the name of Anand Municipality in view of the Government Resolution, subsequently by back door entry by the revenue records which are meant for fiscal purpose, the shelter cannot be taken.
17. Learned Counsel for the petitioners further submitted that in this matter what is interesting to notice is that the persons approached Talati by giving an application on 12/09/1990 drawing his attention with regard to the order made in year 1958. From the subsequent entry, it is clear that Bhathibhai Surabhai, Mangalbhai Surabhai, Hathibhai Jenabhai and Lallubhai Jenabhai were sought to be entered as occupiers of the land. However on demise of these persons, their heirs were required to be brought on record. This was done on 29/11/1990. What about the heirs of others, that is to say, Mangalbhai Surabhai, Mohanbhai Jenabhai, Hathibhai Jenabhai and Lallubhai Jenabhai ? There is no enquiry made by the City Deputy Mamlatdar, Anand and without death certificates, names appear to have been recorded only on the basis of family pedigree without making any inquiry. When the person expired is not mentioned. The original occupants were Bhaijibhai Manabhai and Bhathibhai Surabhai. There is no reference to Bhaijibhai Manabhai in subsequent entry. Even the document, which is executed, does not refer the name of Bhaijibhai Manabhai. Thus, it appears that conveniently, the names of the certain persons have been entered with a view to gain monetary advantage with the help of the Revenue Officer. After the order of the Prant Officer was produced, the City Deputy Mamlatdar who granted the application on 13/12/1990, was not aware that regrant was in favour of Bhaijibhai? If that is so, then, why subsequent entries of 02/02/1991 and 07/05/1991, though there is no reference to Bhaijibhai Nanabhai, have been accepted and approved by the City Deputy Mamlatdar. In absence of any explanation from the Collector on oath, only conclusion that can be drawn is that entries in revenue record which are meant for fiscal purpose have been made in view of the application to help wrongdoers. How an entry was made after a period of 32 years, knowing fully well that Town Planning Scheme is implemented and the rights have been crystallised under the Scheme. Apart from this, shocking fact is that the order was made by the Collector on 06/07/1992. He arrived at a conclusion that the land stands in the names of Shashikant Patel, occupier Manibhai and others. On what basis, he arrived at a conclusion that the applicants were in possession since more than 20 years? It is the Collector who put the Anand Municipality in possession in the year 1964 and a school building was erected by Anand Municipality. How the Collector, thereafter, stated in the order that the applicants are in possession since more than 20 years? The record clearly indicates that they were not in possession. It is clear that the Collector, without examining the record on the basis of Resolution made by the AADA, has passed this order. It is clear that the application has readily been accepted as there was transaction which is clear from the order made by the Collector. The fact that he has made an order with a condition that the Sale Deed was to be executed in favour of Bhikhabhai with certain conditions suggests that the land which is in possession of the school was sought to be disposed of. It is clear that all joined the hands.
18. Mr. A.J.Patel, learned counsel appearing for the contesting respondents, made a serious grievance in the instant case about authorities which had acted in gross violation of the provisions of law. He submitted that it is only because of these authorities, claiming to have exercised the powers in accordance with law, that have made innocent people to believe that what others were doing was in accordance with law and they would not be prejudiced if the property was purchased. Mr. Patel, learned counsel, submitted that in the year 1958, for breach of new tenure land conditions, the land vested in the Government. However, the Prant Officer on certain conditions; i.e. making of payment and compliance of certain conditions made an order of regrant. These conditions were never fulfilled; amount was never paid and the persons in whose favour order was made, did not make any grievance at any point of time after the land vested in the Government as waste land. In the year 1964, when the State Government made a resolution handing over the parcel of land, namely; Survey No. 1934/4, admeasuring about 2.10 acres, of Anand to the Anand Municipality for the purpose of school, no objection was raised. After the school building was constructed, the persons who appeared before the Mamlatdar in the year 1990 by giving an application, never appeared before any authority earlier. He further submitted that apart from that, for TPS No.4, when proceedings were initiated, none of the so-called owners appeared before the Town Planning Authority claiming interest. After the TPS became final on notification being issued, the Scheme became part and parcel of the Act. Mr. Patel, learned advocate, in view of this submitted that the Area Development Authority, Anand had no business to pass the resolution unless the Chairman and others had positive interest in making the resolution. He also submitted that even the Collector had no business to pass the order for conversion of land into non agricultural as it was within his knowledge that the land vested in Anand Municipality in view of the Town Planning Scheme. He further submitted that after 32 years, neither the Collector nor the AADA nor its Chairman could have exercised the powers. Entry in Form No.6, dated 12/09/1990, Annexure D, refers to the name of original occupier, Bhaijibhai Manabhai. Subsequent thereto, on 29/11/1990, an application was given, the substance of which is recorded in Form No.6, Annexure E, which indicates that Bhathibhai Surabhai, Mangalbhai Surabhai, Mohanbhai Jenabhai, Hathibhai Jenabhai and Lallubhai had expired and without any evidence, the names have been entered of three persons namely; Jivaben widow of Budhabhai, Vinubhai Budhabhai & Manibhai Hathibhai. If Bhathibhai Surabhai expired, there is nothing to show as to who were his heirs and why the name of his widow or his successors were not entered. Similarly, with regard Mangalbhai Surabhai, Mohanbhai Jenabhai, and Lallubhai Jenabhai, though it is specifically mentioned that they expired, there is no reference to their heirs. He further submitted that persons with a view to grab the land, without producing the copy of Will or Probate or Letter of Administration, by filing an affidavit stating that by oversight, the Will was not submitted, got the name of Patel Shashikant entered in the record in Form No.6. Similarly, the same person got his name entered on the basis of a true copy of Will executed by Gajraben widow of Mohanbhai. No date is mentioned as to when the Will was executed by Gajraben. It is surprising that mother-in-law of Jivaben executed the Will in favour of Shashikant Jethabhai Patel. However, names of all the heirs of Budhabhai, namely; Jivaben and Vinubhai, were entered on 11/01/1990 vide Annexure E. Annexure G, order of the Prant Officer, if perused, it becomes clear that the said parcel of land was in the names of Bhaijibhai, Bhathibhai Surabhai, Lallubhai Jenabhai and Mangalbhai Surabhai. If that is so, then, how there could be 1/3 (one-third) share indicated in the Will. How Manibhai Hathibhai, Jivaben and Vinubhai Budhabhai could have executed document in favour of Shashikant Jethabhai Patel indicating that 2/3 (two-third) share has been transferred in favour of Shashikant Jethabhai Patel, (Vide Annexure I). Thus, these entries have been made to suit their convenience. Mr. Patel, learned Counsel, further submitted that these entries are made for fiscal purpose and no reliance could have been placed on these entries in absence of Probate or Letter of Administration. The Collector ought not to have acted upon such material.
19. The effect of mutation entries in revenue records is a well settled legal position and is thus beyond any pale of controversy. We may only briefly recapitulate what has been consistently laid down by the Apex Court :
"Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enable the person in whose favour mutation is ordered to pay the land revenue in question." In case of SAWARNI (SMT) VS. INDER KAUR (SMT) AND OTHERS reported in (1996) 6 SCC 223 at 227, the Apex Court has pointed out as above. "It is well settled law that mutation entries do not create any title or interest therein." [(1996) 6 SCC 433 : SANKALCHAND JAYCHANDBHAI PATEL AND OTHERS VS. VITHALBHAI JAYCHANDBHAI PATEL AND OTHERS] "It is well settled law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land." [(1997) 1 SCC 734 : STATE OF U.P. VS AMAR SINGH AND OTHERS.]
20. Mr. Patel submitted that even AADA is a party to this fraud. An application was made for getting possession of land from Anand Area Urban Development Authority though the property was already vested in Anand Municipality. If the property is vested in Anand Municipality, in view of the Government Resolution, what rights AADA had to pass the resolution stating that out of Final Plot No. 270, 6060 sq.mtrs. of land be handed over to the applicant, Jivaben? From the resolution, it is very clear that Jivaben was the sole applicant. It is also indicated that there was name of one Hathibhai Jenabhai. Reading these two names and entries which are referred hereinabove, it is clear that this resolution is nothing but a resolution made for convenience of others. According to Mr. Patel, AADA which otherwise is required to act in accordance with law, has acted contrary to the provisions of the Development Act. Before the Area Development Authority, a request was made for handing over the possession while the Collector in his order, Annexure F, has arrived at a finding that for more than 20 years, the applicants were in possession, which is contrary to the evidence.
21. The Development Act is a piece of legislation for the purpose of town planning and that is required to be taken into consideration. Section 5 of the Development Act refers to constitution of area development authority. Anand Area Urban Development Authority, Respondent No.2 in the petition, is the authority under the Development Act for the area. Section 6 of the Development Act, empowers the State Government instead of constituting an area development authority for a development area, to designate any local authority functioning in a development area or part thereof, as the area development authority for that development area. Section 7 of the Development Act, points out the powers and functions of area development authority. The said section reads as under :
"(1) The [Power and functions of] an area development authority shall be-
(i) to undertake the preparation of development plans under the provisions of this Act for the development area;
(ii) to undertake the preparation [and execution] of town planning schemes under the provisions of this Act, if so directed by the State Government;
(iii) to carry out surveys in the development area for the preparation of development plans or town planning schemes;
(iv) to control the development activities in accordance with the development plan in the development area; [(iv-a) to levy and collect such scrutiny fees for scrutiny of documents submitted to the appropriate authority for permission for development as may prescribed by regulations;"]
(v) to enter into contracts, agreements or arrangements with any person or organization as the area development authority may deem necessary for performing its function;
(vi) to acquire, hold manage and dispose of property, movable, as it may deem necessary;
(vii) to execute works in connection with supply of water, disposal of sewerage and provision of other services and amenities;
[(vii-a) to levy and collect such fees for the execution of works referred to in clause
(vii) and for provisions of other services and amenities as may be prescribed by regulation;"]
(viii) to exercise such other powers and perform such other functions as are supplemental, incidental or to any of the foregoing powers and functions or as may be directed by the State Government. (2) The area development authority may, with the approval of the State Government, delegate [any of its Power and functions] to the local authority or authorities within its jurisdiction. (3) The area development authority shall have its office at such place as the State Government may specify in this behalf."
22. Section 22 of the Development Act refers to declaration of urban development area and constitution of urban development authority. Section 23 of the Development Act refers to powers and functions of urban development authority. Section 26 of the Development Act puts restriction on development after publication of draft development plan. Section 29 of the Development Act refers to grant or refusal of permission. It is under this section, permission is granted for development of land.
23. So far as the Town Planning Schemes are concerned, Chapter V of the Development Act refers to the same. The act also provides that the scheme may make provision for the allotment or reservation of the land for roads, open spaces, gardens, grounds, schools, markets, green belts, dairies, transport facilities, public purposes of all kind. After the provisions having been made in the scheme, the same is to be implemented. The plot earmarked for particular public purpose cannot be changed so as to frustrate the purpose. In the instant case, Final Plot No. 270 was for public purpose.
24. Section 52 of the Development Act refers to contents of preliminary and final scheme. The said section reads as under :
Section 52 :-
(1) xxx (2) The Town Planning Officer shall submit the preliminary scheme so prepared to the State Government for sanction and shall thereafter prepare and submit to the State Government the final scheme in accordance with the provisions of sub-section (3). (3) In the final scheme, the Town Planning Officer shall, -
(i) xxx
(ii) determine whether the areas used, allotted or reserved for a public purpose or purposes of the appropriate authority are beneficial wholly or partly to the owners of residents within the area of the scheme;
(iii) xxx
(iv) xxx
(v) xxx
(vi) xxx
(vii) xxx
(viii) xxx
(ix) xxx
(x) xxx
(xi) draw in the prescribed form the preliminary and the final scheme in accordance with the draft scheme :
Provided that the Town Planning Officer may make variation from the draft scheme, but no such variation, if it is of a substantial nature, shall be made except with the previous sanction of the State Government, and except after hearing the appropriate authority and any owners who may raise objections.
25. Mr. Patel, learned Counsel appearing for the contesting respondents, submitted that after vesting, there can be no variation. The legislature restricted the power of granting sanction even as per proviso referred hereinabove in cases of variations as enumerated in Section 40(3)(jj)(C). Intention of the legislature was that once the plot is reserved for a public purpose, it cannot be changed. The purpose must be a public purpose. The purpose at the stage of preliminary and final scheme was public welfare. Even the State Government could not have made substantial changes which would defeat the scheme. Mr. Patel, learned Counsel, rightly submitted that the AADA has transgressed the statutory provisions.
26. Section 41 of the Development Act refers to powers of appropriate authority to resolve about declaration of intention to make a scheme. Section 42 refers to for making and publication of draft scheme. Section 43 refers to power of State Government to require appropriate authority to make scheme. Section 44 refers to contents of draft scheme. The draft scheme shall contain the particulars with regard to the area, ownership and tenure of each original plot. The draft scheme shall also state the particulars of land allotted or reserved for roads, open spaces, gardens, recreation grounds, schools, markets, green-belts, dairies, transport facilities, public purposes of all kinds with a general indication of the use to which such land is to be put and the terms and conditions subject to which such land is to be put to such uses. Form No.B (Rule 17 & 29) which is placed on record at Annexure B, indicates; name of owner as Anand Municipality; Original Survey No.1934/4; area 9105 sq.mtrs.; new Final Plot No. 270 and area for the plot 8017 sq.mtrs. The remark column indicates "school purpose."
27. Section 45 refers to reconstitution of plots. Section 46 refers to disputed ownership. The said section reads as under :
"(1) Where there is a disputed claim to the ownership of any place of land included in an area in respect of which a declaration of intention to make a scheme has been made and any entry in the record of rights or mutation relevant to such disputed claim is inaccurate or inconclusive, an inquiry may be held on an application being made by the appropriate authority or the Town Planning Officer at any time prior to the date on which the Town Planning Officer draws up the preliminary scheme under Section 51 by such officer as the State Government may appoint for the purpose of deciding as to who shall be deemed to be the owner for the purpose of this Act.
(2) Such decision shall not be subject to appeal but it shall not operate as a bar to a regular suit in a court of competent jurisdiction.
(3) Such decision shall, in the event of a Civil Court passing a decree which is inconsistent therewith, be corrected, modified or rescinded in accordance with such decree as soon as practicable after such decree has been brought to the notice of the appropriate authority by the person affected by such decree."
From the aforesaid section, it is very clear that the person, who approached the Collector and the Talati by making applications, ought to have approached the authority when declaration of intention to make a scheme was made as contemplated under the provisions of law. Having failed and having allowed everyone to believe including all the the authorities that the land was Government land which ultimately before the scheme vested in the Municipality and was handed over to the Municipality, in 1964, the applicant was not justified in approaching the Area Development Authority or the Collector. These authorities have not only failed in discharge of their duties but have acted contrary to the provisions of law.
28. It is required to be noted that the objections to the draft scheme are to be considered under Section 47. Section 48 of the Development Act refers to power of State Government to sanction draft scheme. Section 49 refers to restrictions on use and development of land after declaration of a scheme. Section 65 of the Development Act refers to power of Government to sanction or refuse the scheme and effect of sanction. Subsection (3) of Section 65 of the said act reads as under :
"On and after the date fixed in such notification, the preliminary scheme or the final scheme, as the case may be, shall have effect as if it were enacted in this Act."
29. Mr. Patel, learned Counsel, submitted that in view of the Town Planning Act, the rights have been crystallised and, therefore, it was not open for either Anand Area Development Authority or the Collector to exercise the powers so as to interfere with the legislation. Section 67 refers to effect of preliminary scheme. The said section reads as under :
"On the day on which the preliminary scheme comes into force- (a) all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances; (b) all rights in the original plots which have been reconstituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer."
Thus, the rights in the original plot which was reconstituted into final plot have been determined and the final plot, in the instant case, stands vested in the Municipality. In view of Section 68, the person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme is required to be summarily evicted. Thus, in view of the TPS, persons claiming the land had no right to remain in the property. The original owner will become a trespasser in case of change of ownership or if he remains in the part of land which on account of reconstitution has been vested in favour of others. Thus, the Collector as well as AADA neglected the effect and consequences of forfeiture of land by the Prant Officer in the year 1958, allotment of the land by the State Government in the year 1964 to Anand Municipality, erection of a school building and use of plot by the school, and that the reservation of plot under the Town Planning Scheme is for a public purpose.
30. Section 70 of the Development Act refers to power to vary scheme on ground of error, irregularity or informality. After the final scheme has come into force, if the authority considers that scheme is defective on account of an error then, the appropriate authority may apply in writing to the State Government for the variation of the scheme. In the instant case, area urban development authority believing that there is an error, exercised the powers of the State Government as if it is making variation in the Scheme. Thus, the authority has acted without any power whatsoever, it has acted arbitrarily and has acted in collusion with others, is a submission made by the learned Counsel. There is nothing but transgression of statutory provisions.
31. It is required to be noted that as per Rule 21(3) of the Bombay Town Planning Rule, 1955, the Town Planning Officer before proceeding to deal with the matter, was required to publish a notice in the Official Gazette and in one or more newspapers circulating within the jurisdiction of the local authority, specifying the matters which were proposed to be dealt with by the Town Planning Officer and stating that all persons affected by any of the matters specified in the notice communicate in writing their objections to the Town Planning Officer within a period of fifteen days from the publication of the notice in the Official Gazette. Such notice was also required to be posted at the office of the Town Planning Officer and of the local authority and the substance of such notice was also to be posted at convenient places in the said locality as provided in the rules. None approached the Town Planning Officer. The official acts are presumed to have been performed in the manner laid down in the rules. The notice, as provided under the rules, was required to be published in newspaper, official gazette, at the office of Town Planning and the local authority. Substance of the notice was required to be posted at the convenient place in the locality and thus, after the following the procedure, the proceedings have culminated into the scheme whereby Government plot allotted by the State Government in the year 1964 has been reconstituted by reducing size and final plot vested in the Municipality. In view of the provisions contained in the Development Act, no changes could have been made by either area development authority or by the Collector so as to affect the right of Anand Municipality. It is not stated on oath by AADA that the procedure was not followed. All interested persons could have lodged their claims. Having not done so by back door entry, the authorities have acted illegally. On behalf of the Anand Municipality it was submitted that even if the occupier was really in possession in accordance with law, even then, at the most under the scheme, he would have been entitled to claim the amount but could not have claimed the land. In the instant case, having not objected at any stage, a false claim was made before the AADA and the Collector who merely accepted the claim and made an order. Anand Municipality which is a local authority, has to suffer. Without following the procedure, required under the law, all have acted and the grievance is made by contesting respondents, Anand Municipality and the petitioners.
32. The learned counsel appearing for the Anand Municipality submitted that in the instant case though the rights of the Anand Municipality were affected, no effective steps were taken by the President of Area Urban Development Authority to protect the rights of Municipality. The President, for one or other reason, has simply tried to protect the property of the School namely building only. He ought to have objected to this, when he was questioned. If he would not have been questioned, the situation would have been different. According to the advocate appearing for the Municipality, in view of the provisions of law, it is very clear that neither the Collector nor the Area Development Authority had power to hand over the parcel of the land without following the procedure of law namely; variation of scheme by the State Government subject to Section 40(3)(jj) of the Development Act. So far as the Counsel appearing for AADA is concerned, on the basis of the affidavit filed by the Senior Assistant, AADA, he tried to support the action. However, he was not in a position to point out that the action was justified in view of the provisions of law which we have discussed hereinabove. In our opinion as land is covered for social infrastructural facilities, i.e. school, under no circumstances purpose of allotment can be changed even by variation of the scheme for the purpose other than public purpose. Thus, thee is transgression of statutory provisions.
33. Mr. Patel, learned counsel appearing for the contesting respondents, submitted that this is a fit case wherein the Government should be directed to reimburse the amount paid by them for purchase of the plot. They relied on the order made by the Collector and the development permission granted by the Area Development Authority. As these two authorities have not acted in accordance with law but they have acted with a view to see that the land is disposed of and private persons are gained, they should be held responsible for the loss suffered by the State. Mr. Patel submitted that law relating to public accountability is now well settled by the Supreme Court. He invited attention of the Court to the decisions of the Apex Court.
34. In this matter, question of public accountability is involved. The Apex Court in the case of MAHESH CHANDRA vs. REGL. MANAGER, U.P.F.C. reported in (1993) 2 SCC 279 and in the case of LUCKNOW DEVELOPMENT AUTHORITY reported in (1994) 1 SCC 243 has pointed out this aspect.
35. The Apex Court has pointed out in DR. G.N. KHAJURIA vs. DELHI DEVELOPMENT AUTHORITY reported in (1995) 5 SCC 762 as under:
"10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of the courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined, retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."
36. The Court has pointed out on several occasions that there should be accountability and liability of public servants in administrative matters, and there should be transparency in all what they do. The Apex Court in the case of COMMON CAUSE vs. UNION OF INDIA reported in (1999) 6 SCC 667 has pointed out that Executive or administrative actions of State or its instrumentalities or statutory or public bodies which are in violation of fundamental rights or which are arbitrary or oppressive in violation of Art. 14 or any statute are open to judicial review.
37. The Supreme Court in the case of STATE OF BIHAR VS. SUBHASH SINGH, reported in (1997) 4 SCC 430 ( AIR 1997 SC 1390) observed as under :
"The Constitution has devised permanent bureaucracy as part of the political executive. The normal principle that the permanent bureaucracy is accountable to the political executive is subject to judicial review. The doctrine of `full faith and credit' applied to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. The bureaucracy is also accountable for the acts done in accordance with the rules when judicial review is called to be exercised by the Courts. The hierarchical the Department / designated officer is ultimately responsible and accountable to the Court for the result of the action done or decision taken. Despite this, if there is any special circumstance absolving him of the accountability or if someone else is responsible for the action, he needs to bring them to the notice of the Court so that appropriate procedure is adopted and action taken. The controlling officer holds each of them responsible at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law."
38. The Supreme Court in the case of LUCKNOW DEVELOPMENT AUTHORITY VS. M.K.GUPTA, reported in (1994) 1 SCC 243 [AIR 1994 SC 787 : (1994) 80 Comp Cas 714 : (1994) 13 CLA 20 : (1994) 1 CLC : (1994) 1 CPR 569] held as under:
"The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides. It is now accepted that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees. It is not necessary, `to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the State'. In any case the law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the Courts entrusted with responsibility of maintaining the rule of law.
However, today the issue is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socioeconomic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. Public administration involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory posers. The test of permissible form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court direct payment of damages of compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law.
The jurisdiction and power of the Courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded on the principle that `an award of exemplary damage can serve a useful purpose in vindicating the strength of law'. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. The award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook."
39. The public body like Anand Area Development Authority which was acting as a trustee of public properties, was required to carry out public functions. It cannot escape from its accountability. In the instant case, it is not a case of mere failure to carry out provisions of law but the Chairman, Collector and their subordinates with a view to frustrate the public interest, by passing the mandatory provisions of law, used the office for the purpose of handing over the land. In this process also, they have not followed any procedure and a mere show was made that they were acting in accordance with law. The officers of the Collectorate including the Collector himself who passed the order and the chairman of AADA and subordinate officers were responsible, is our prima facie opinion. The State would be required to pay amount to the innocent purchasers of the plots. The question may be asked as to why the State should bear that burden and why it should not recover the amount from the persons who have acted either negligently or with connivance with others. It is required to be noted that the public loss must be borne by the persons concerned, otherwise, there would be unwarranted protection to the officers from the responsibility and from the punitive action on account of wrong done by them. Therefore, it would be just and proper to direct that the State Government shall conduct an inquiry and after giving an opportunity to the officers, shall make an appropriate order for recovery of amount from the erring officers.
40. In case of STATE OF MAHARASHTRA VS. PANDURANG K. PANGARE reported in 1995 SUPP (2) SCC 119 [ AIR 1995 SC 1202] as there was no sufficient material before the Court, direction was given to make an inquiry into the authenticity of the allegations. The Apex Court held as under :
"If the allegations found to be true then the authority as well as the Municipal Council shall take action against the officers concerned and shall report compliance of it to the Court within six months".
41. In the case of COMMON CAUSE, A REGISTERED SOCIETY VS. UNION OF INDIA reported in (1996) 6 SCC 530, the Apex Court pointed out as under :
"It is high time that the public servants should be held personally responsible for their mala fide acts in discharge of their functions as public servants. The Supreme Court in the case of LUCKNOW DEVELOPMENT AUTHORITY approved "Misfeasance in public Offices" as part of the law of Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrongdoing. With the change in socioeconomic outlook, the public servants are being entrusted with more and more discretionary powers even in the filed of distribution of government wealth in various forms. If a public servant abuses his office either by an act of omission or commission, and the consequences of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say `you may set aside an order on the ground of mala fide but you cannot hold me personally liable'. No public servant can arrogate to himself the power to act in manner which is arbitrary."
42. The Apex Court in the case of SECRETARY, JAIPUR DEVELOPMENT AUTHORITY, JAIPUR VS. DAULATMAL JAIN AND OTHERS reported in (1997) 1 SCC P. 35, pointed out as under :
"The Government acts thorough its bureaucrats, who shape its social, economic and administrative policies to further the social stability and progress socially, economically and politically. Action of the Government, should be accounted for social mortality. Therefore, the actions of the individuals would reflect on the actions of the Government. The actions are intended to further the goals set down in the Constitution, the laws or administrative policy. The action would, therefore, bear necessary integral connection between the `purpose' and the end object of public welfare and not personal gain. The action cannot be divorced from that of the individual actor. The end is something aimed at an only individuals can have and shape the aims to further the social, economic and political goals."
43. In case of SMT. NILABATI BEHERA ALIAS LALIT BEHERA VS. STATE OF ORISSA; (1993) 2 SCC 746, Dr. Anand, J (as His Lordship then was) pointed out as under:
"The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights."
It is further pointed out as under :
"It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so, the Courts take into account not only the interest of the applicant and the respondent but also the interest of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties....."
44. All the officers of the Government are required to act in a manner so as to achieve goals namely; social stability, social progress and stability economically as well as politically. If the officers of the Government negligently or with an ulterior motive act in such a way so as to frustrate the object then, there is no reason why they should not be held responsible.
45. It is clear that the Prant Officer, Deputy City Mamlatdar, Mamlatdar Anand, Deputy Collector, Anand and Collector, Anand are responsible for making the people to believe that the land in question has been declared as non agricultural land and construction can be carried out. Under the law, it was not their duty to adjudicate the matter after the period of 32 years and after the land was vested in the Municipality since 1964, vide Government Resolution. Mr. Patel submitted that the Town Planning Officer, Vinodbhai J. Bhatt and the members of Anand Urban Development Authority who were acting as such on 03/06/1991 for making Resolution No.161, are equally responsible for acting in this irresponsible manner without authority of law. Though it was not the function of the Area Urban Development Authority to act in such a way which would amount to variation of the scheme, it has acted arbitrarily and illegally so as to indulge in wrongful gain to others. In the instant case, on behalf of the State, no reply has been filed. We fail to understand as to why the State has not come with the clean hands.
46. The question is what relief should be granted to the petitioners and how the innocent purchasers should be protected.
47. The innocent purchasers relied on the documents namely; (1) order made by AADA vide Annexure `II'; (2) order made by the Collector vide Annexure `F'; (3) development permission granted by AADA vide Annexure `III'; and (4) redevelopment permission granted vide Annexure `VI'. If these authorities would have not made aforesaid orders, the innocent purchasers would not have purchased the property.
48. It is clear from the record that the Collector purporting to exercise power under the Land Revenue Code for converting the parcel of land to non-agricultural land, had directed to pay a sum of Rs.10,60,500/- by way of premium, and as found in Annexure `F', the amount was received by the Collector. This amount has been collected for disposal of the land which belonged to Anand Nagarpalika and, therefore, neither the Collector nor the AADA could have collected this amount. Therefore, this amount must be returned to the persons who are likely to suffer. The contesting respondents have not placed on record as to what amount they have paid while executing the document for purchase of the land. Whatever amount they have spent must be paid to them, as, the order passed by the Collector (Annexure `F') and the order passed by the AADA, (Annexure `II') are required to be quashed and set aside.
49. Under the circumstances and in view of what is stated hereinabove, this petition is allowed with costs as indicated hereinbelow. The order made by the Collector vide Annexure `F', the order made by the AADA vide Anneuxre `II', the Development Permission granted by the AADA vide Annexure `III' and the Redevelopment Permission granted vide Annexure `VI' are quashed and set aside.
50. The Chief Secretary shall hold an inquiry either himself personally or shall entrust the inquiry to a Senior Officer who is concerned with the Department and looking after urban development. After making the inquiry and after giving a reasonable opportunity of being heard, the said Officer shall decide the responsibility of the officer and others on the basis of material placed on record before this Court. We have indicated in our order that neither the Collector nor the Chairman, AADA nor the Anand Municipality nor its Town Planning Officer, Shri Bhatt whose name is reflected in the order Annexure `II' nor the Mamlatdar, Anand City nor the Deputy Collector, Anand were entitled to act in such a way so as to play mischief with the provisions made in the Development Act. The Officer concerned shall make a detailed inquiry to find out the role played by Shashikant Jethabhai Patel (Respondent No.43), Manibhai Hathibhai (Respondent No.42), Navnitbhai Harmanbhai as well as Jivaben Budhabhai (Respondent No.40), Vinubhai (Respondent No.41)and if they are found to have acted in collusion, the State shall take appropriate action against these persons. All persons connected and required in the inquiry proceedings shall extend full cooperation to the Officer making the inquiry.
51. It is directed that the inquiry shall be completed within a period of six months and report of the same shall be placed before this Court for perusal. In case of any difficulty in proceeding with the inquiry, the Officer entrusted with the inquiry will be at liberty to move this Court. Registry is directed to notify this matter on 22/10/2001 for production of the inquiry report.
52. The Collector shall forthwith on receipt of writ of this order send notices to the respondent Nos. 8 to 39 to produce before him documents to show the amount paid by each of them.
53. The amount which has been collected by the Collector for disposal of the land which belonged to the Nagarpalika is ordered to be refunded to the contesting respondent Nos. 8 to 39 by the State Government within a period of eight weeks from today with interest at the rate of 12% per annum. The amount of difference of price with interest shall be paid after recording a finding by the Chief Secretary or the Officer who is entrusted the inquiry and after the Court passes an order on the basis of the report
54. The Chief Officer, Anand Municipality, shall pay the costs of Rs.20,000/-. The Chairman, AADA, shall also pay the costs of Rs.20,000/which shall be recovered from the erring Chairman who was instrumental in making the impugned resolution and responsible for granting development permission. The sum of Rs.20,000/shall also be paid by way of costs by the Collector and the said amount shall be recovered from the erring Collector who made the order, Annexure-F. Out of these amounts, a sum of Rs.20000/- shall be paid to the petitioners by way of costs and the remaining amount shall be remitted to the State Exchequer. So far as the contesting respondent Nos. 8 to 39 are concerned, they are also held entitled to costs of these proceedings. The State is directed to pay the amount of costs within a period of eight weeks to each contesting respondent in the sum of Rs.2000/-. It will be open for the State Government to recover the amount of costs which is ordered to be paid to the contesting respondents from the erring officers.
Rule is made absolute accordingly.