Gujarat High Court
Urmilaben vs Special on 24 October, 2008
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
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SCA/9542/1998 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9542 of 1998
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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URMILABEN
VIJAYKUMAR TRIVEDI - Petitioner(s)
Versus
SPECIAL
SECRETARY REVENUE DEPTT. (APPEALS) & 1 - Respondent(s)
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Appearance :
MR
HM JADEJA for Petitioner(s) : 1,
MS. REETA
CHANDARANA, AGP for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 24/10/2008
ORAL
ORDER
1. The petitioner in the present petition has challenged an order dated 19.05.1997 passed by the Secretary (Appeals) in Revision Application filed by the petitioner.
2. Shortly stated facts of the case are as follows:
2.1 One Smt. Ujamben was owner of land bearing survey no. 414/1 admeasuring 2 acres situated in Gondal town. By an order dated 09.05.1994, Deputy Secretary permitted the land to be converted for nonagricultural use. This was on the condition that 665 Sq. Mts. of such land will be kept open for common plot in addition to providing for other land for road. Such land was therefore, surrendered by Ujamben in favour of the Municipality. However, through the Resolution dated 09.06.1981 Municipality transfered 500 sq. yards out of the said land in favour of one Maheshkumar Prabhashankar Trivedi by a registered sale-deed dated 23.09.1982 by charging Rs. 2/- per sq. yards for the land sold. Shortly thereafter, Maheshkumar who is brother of the wife of the petitioner transferred the same land in favour of present petitioner by registered sale-deed dated 04.01.1983.
2.2 The Collector, Rajkot, finding that the entire transaction was unauthorized, issued a notice dated 13.09.1993 under Section 258 of the Gujarat Municipalities Act, 1963. By an order dated 20.10.1993, the Collector suspended execution of the said Resolution and directed that the petitioner be evicted from the land. Petitioner preferred appeal against the said order before the State Government and the Deputy Secretary by an order dated 09.05.1994 set aside the order passed by the Collector, Rajkot on the condition that the petitioner pays prevailing market price for the land in question whereupon her possession will be regularized.
2.3 The petitioner has challenged the said order of the Deputy Secretary by filing Regular Civil Suit No. 251 of 1994 which is pending and injunction in favour of the petitioner has been granted.
2.4 In the meantime, the Collector, Rajkot started proceedings by issuance of notice dated 18.01.1994 to the Municipality with the copy to the petitioner to show cause why superstructure put on the land should not be removed for breach of the condition. By an order dated 17.05.1994, the Collector imposed a penalty of 40 times the assessment under the Land Revenue Rules and also ordered removal of the construction of the plot in question and for eviction on the occupants. Revision filed by the petitioner before the Government against the said order came to be dismissed by an order dated 19.05.1997 upon which the petitioner has approached this Court by filing the present petition.
3. Having heard learned advocates appearing for the parties, I find that the facts of the case are somewhat peculiar and accordingly an appropriate approach shall have to be adopted by the Court.
4. On one hand it is clear that the land which was surrendered by the original owner in favour of the Municipality to be used as a common plot/road was unauthorisedly sold by the Municipality to the brother-in-law of the petitioner, at which appears to be an extremely low price of Rs. 2/- per sq. yard. Brother-in-law of the petitioner was at the relevant time Counselor in the Gondal Municipality. Within a short span of four months, the transferee sold the plot to his brother's wife i.e. the present petitioner. These transactions were reviewed by the Collector under the provisions of the Gujarat Municipalities Act and found to be unauthorized. Apparently though immovable property of the municipality was being sold, no permission from the Collector was obtained. On the Revision filed by the petitioner, the order of the Collector was modified and the Deputy Secretary though permitted the petitioner to continue to occupy the land, it was made conditional on the petitioner paying market price prevailing on the date of the order. This order was passed in 1994. The petitioner has challenged this order before the Civil Court and the suit is pending. Prima facie, I have doubt whether such a suit would be competent. Prima facie, it also emerges that the sale was affected under extremely suspicious circumstances.
5. I find that the impugned orders passed by the Collector as upheld by the Secretary (Appeals) cannot parallely survive side by side the order passed by the Deputy Secretary on 09.05.1994. If the occupation of the petitioner is to be regularized as directed by the Deputy Secretary it is difficult to appreciate how the Collector thereafter ordered her eviction summarily.
6. Taking overall view of the matter and taking into account totality of the facts and circumstances of the case, I find that the petition is required to be disposed of by giving following suitable directions:
The petitioner shall pay market price prevailing on 09.05.1994 when the Deputy Secretary passed order partially in favour of petitioner, with simple interest @ 9% per annum from the said date till actual payment. To ascertain then prevailing price, the competent officer of the Government shall take into consideration the representation of the petitioner along with such material that the petitioner may place before the Government in this regard within a period of 4 weeks from today.
After ascertaining the market price and communication thereof to the petitioner, the petitioner shall have four months time to make the payment.
The orders passed by the Collector and Secretary (Appeals) dated 17.05.1994 and 19.05.1997 respectively are quashed.
Civil suit filed by the petitioner would not survive and shall be disposed of by the trial Court accordingly.
If the petitioner does not pay the amount as provided above, it will be open for the Government to recover the same in accordance with law.
7. With the above directions, this petition is disposed.
8. Rule is made absolute to the above extent. No order as to costs.
(Akil Kureshi, J) niru* Top