Gujarat High Court
Vadodara Municipal Corporation vs State Of Gujarat & 2 on 11 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/6359/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6359 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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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 or any order made thereunder ?
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VADODARA MUNICIPAL CORPORATION....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR PRANAV G DESAI, ADVOCATE for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 2.1
MR. MANAN MEHTA, AGP for the Respondent(s) No. 1
MR P P MAJMUDAR, ADVOCATE for the Respondent(s) No. 3 - 3.2
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 3 - 3.2
MR ZAKIRHUSEN SHAIKH, ADVOCATE for the Respondent(s) No. 2.2 - 2.5
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 11/04/2017
ORAL JUDGMENT
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1. Heard Mr. Pranav G.Desai learned advocate for petitionerVadodara Municipal Corporation and Mr. Mehta, learned AGP for Respondent No.1. Respondent No.2.1 is deleted. Mr. ZakirHusen Shaikh, learned advocate has entered appearance for respondent Nos.2.2 to 2.5. However, when the petition is taken up for hearing, learned advocate for respondent nos. 2.2 to 2.5 is not present. Mr. Majmudar learned advocate for respondent nos. 3.1 and 3.2. is present.
2. In present petition, the petitioner Vadodara Municipal Corporation has challenged order dated 29.1.1999 passed by learned Revenue Tribunal in Revision Application/ Appeal No.TEN/BA/397/1994. By the impugned decision, learned tribunal, on one hand, rejected the Revision Application filed by the revisionist Vadodara Municipal Corporation whereas by the very same order, learned tribunal has also modified the order passed by the Collector and directed that the land in question shall vest in the Government.
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The said direction is passed in the Revision Application filed by Vadodara Municipal Corporation, that too when the State did not file Revision application against the order passed by the Collector.
3. In this background, the petitioner Corporation is aggrieved by the order of the learned Tribunal. Hence present petition.
4. So far as factual background is concerned, it has emerged from the record that somewhere in 1975, the Petitioner Vadodara Municipal Corporation resolved to acquire certain parcel of land (hereinafter referred to as 'land in question') and for that purpose, the petitioner Corporation entered into negotiations with land owner. The Corporation intended to acquire the land in question in exercise of power under Bombay Provincial Municipal Corporations Act, 1949. The negotiation between the parties ensued and ultimately the negotiation resulted into an Page 3 of 16 HC-NIC Page 3 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT agreement between the parties under which the corporation acquired/ purchased the land in question and somewhere in December, 1975 possession of the land in question was handed over to the Corporation. Subsequently, agreement to sell came to be executed between the parties in January, 1976. The Sale deed was executed between the petitioner Vadodara Municipal Corporation and Mr. Manubhai Chaturbhai Patel (since deceased), the original land owner.
5. It appears that at the relevant time, application seeking exemption under Section 20 of ULC Act was filed and the competent authority under the said Act had granted necessary exemption/ permission under Section 20 of the said Act.
6. Subsequently, in February, 1975, the Collector, Vadodara, passed order converting the tenure/ use of the land and the Corporation made the payment of the amount determined by the Page 4 of 16 HC-NIC Page 4 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT Collector for the said purpose. Thereafter, the Corporation and the land owner executed 3 separate Sale Deeds, in January, 1982.
7. About 10 years thereafter, i.e. somewhere in July, 1992, Mamlatdar & ALT commenced proceedings by way of Tenancy case No.6526 of 1992. 7.1 After adjudicating the said case, the Mamlatdar & ALT passed order dated 14.7.1992. The Mamlatdar & ALT held that the Corporation has committed breach of Section 43 of Tenancy Act by committing breach of conditions. The Mamlatdar & ALT observed that the permission was granted for construction of residential house however construction was not undertaken and thereafter the Corporation committed breach of permission, which necessitated action under Section 84(C) and breach of Section 43 of Act, to restore the land to original status failing which the land would vest in Government and thereafter the land would Page 5 of 16 HC-NIC Page 5 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT be disposed of in accordance with Section 84(C)(4).
7.2 Having reached such findings, the Mamlatdar passed order directing the parties to restore the land in favour of the Government.
7.3 The Corporation felt aggrieved by the said order dated 14.7.1992 passed by the Mamlatdar. The Corporation, therefore, filed Appeal before the Deputy Collector. The Appeal was registered as Tenancy Appeal No.94 of 1992. The Collector rejected the said appeal vide order dated 29.9.1992.
7.4 Feeling aggrieved by the said order of Deputy Collector, the Corporation filed revision application before learned Tribunal which was registered as Revision Application No. 397 of 1994. In the said Revision Application, the learned Tribunal passed impugned order with above direction.
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8. Mr. Desai, learned advocate for the petitioner Vadodara Municipal Corporation submitted that on one hand the learned Tribunal rejected the Revision Application filed by the Corporation whereas on the other hand the learned Tribunal passed order modifying the order passed by the Collector. He submitted that the learned Tribunal modified the order passed by Mamlatdar & ALT/ Deputy Collector. According to learned advocate for petitioner Vadodara Municipal Corporation, the order is vague and unclear inasmuch as on one hand the revision application is rejected whereas on the other hand the learned Tribunal has modified the order passed by the Mamlatdar/ Deputy Collector. According to learned advocate for Corporation in Appeal filed by the Corporation, the learned Tribunal could not have modified the order passed by Mamlatdar & ALT/ Collector in a manner against the revisionist making the Corporation's possession worse off than what it was before the Corporation filed revision application.
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9. Another objection which is raised by the learned advocate for petitioner Corporation is that private party i.e. present respondent no.3 has, in the meanwhile i.e. when the proceedings were pending before the Mamlatdar/ Deputy Collector and before learned Tribunal, instituted two Civil Suits. The private respondent no.3 has, prayed for cancellation of the saledeeds executed by and between the Vadodara Municipal Corporation and the original owner. In light of the said fact, learned advocate for petitioner Corporation would contend that while the said Suits were pending, the learned Tribunal ought to have kept the matter pending and awaited the decision of the Suit proceedings instead of rejecting the Appeal, that too by modifying the order of the Mamlatdar/ Collector.
10. With reference to said Suits, Mr. Desai, learned advocate for the petitioner submitted that the learned Civil Court has passed decree in Page 8 of 16 HC-NIC Page 8 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT favour of respondent no.3, however, the Appeal filed by the Corporation against the decree of Respondent no.3 are pending.
10.1 In this context, Mr. Desai learned advocate for petitioner made reference of order dated 6.10.2016 passed by the Court in present petition. The said order dated 6.10.2016 reads thus:
"1. In the instant case, it appears that the petitioner Vadodara Municipal Corporation ((hereinafter referred to as "VMC") has challenged the order dated 29.1.1999 passed by the Gujarat Revenue Tribunal in Revision Application No.397/1994. It is stated that the said order was also challenged by the legal heirs of the deceased Manubhai Chaturbhai Patel, who are the respondent Nos.2/1 to 2/5 in the present petition, by way of Special Civil Application No.6934 of 1999, however, the said SCA has been dismissed for default.
2. It further appears that the present respondent Nos.3.1 and 3.2 had filed two suits being Civil Suit No.443/2008 and Civil Suit No.865/2006 against the petitioner VMC and the present respondent Nos.2.1 to 2.5, for setting aside the sale deed executed by the said respondents in favour of VMC. The said suits having been decreed by the Civil Judge (S.D.), Vadodara, the present petitioner VMC has preferred two appeals being Regular Civil Appeal No.63/2010 and Regular Civil Appeal No.64/2010, which are pending in the Court of District Judge, Vadodara.
3. Having regard to the facts and circumstances of the case, the Court is of the opinion that before proceeding further in the present petition, the said Appeals are required to be heard and decided by the District Judge, Vadodara.
4. Hence, the District Judge, Vadodara is requested to dispose of the said two appeals as expeditiously as possible, preferably within six months from the date of receipt of this order.
The learned Counsel for the petitioner is directed to produce this order before the District Judge, Vadodara within one week from today.
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5. Put up this petition after six months.
11. From the said order it comes out that the order dated 29.1.1999 passed by learned Tribunal in Revision Application No. 397 of 1994 was challenged by the heirs of the original land owners i.e. Manubhai Chaturbhai Patel by filing Writ Petition being Special Civil Application No. 6934 of 1995.
11.1 It appears that the said petition came to be dismissed on ground of nonprosecution and thereafter any steps for restoration of the said proceedings are probably not taken by the petitioner in said Special Civil Application No. 6934 of 1995.
11.2 From the said order dated 6.10.2016, it also appears that the Court took into account the fact with reference to Civil Suits No. 443 of 2008 and 865 of 2006 filed by respondent no.3.1. and 3.2. The Court has also made reference of decree passed by learned Civil Courts in the said Suits Page 10 of 16 HC-NIC Page 10 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT and about the fact that against the decree the Appeals filed by the Corporation i.e. Regular Civil Suit Nos. 63 of 2010 and 64 of 2010 are pending.
12. After taking into account the said fact about pendency of two Appeals, the Court observed in the order dated 6.10.2016 that the learned Appellate Court shall endeavour to decide the said Appeals within 6 months.
12.1 With said direction, the Court deferred hearing of the present petition until the decision in said two appeals, with further direction to list the case after 6 months.
13. In light of the said direction, the petition is now listed for further hearing and appropriate order.
14. Today, at the time of hearing of the present petition, Mr. Desai learned advocate for Page 11 of 16 HC-NIC Page 11 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT Corporation, informed the Court that though 6 months have passed hearing of the Appeals on merits has not taken steps. He further submitted that actually the said two Appeals are assigned two different Courts, and therefore, the Corporation has submitted an application that both the matters be placed before the same Court and the said Appeals may be clubbed and heard together. According to Mr. Desai any order under said application is also not passed until now.
15. In that view of the matter, it does not appear proper to keep the present petition pending, which is filed in 1995, so as to await decision in Appeal proceedings.
15.1 At the same time, it would also not be appropriate to decide the petition on merits because that may, in one manner or another, pre empt the decision in the said two appeals or may affect/ influence the decision in the Appeals.
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15.2 On the other hand, the objection raised by the learned advocate for the petitioner Corporation against the impugned order passed by learned Tribunal that the said order is erroneous and unjustified inasmuch as on one hand the learned tribunal has rejected the Revision Application filed by the Corporation whereas on the other hand learned Tribunal, at the same time, passed direction modifying the order passed by the Mamlatdar/ Collector, which affects the petitioner Corporation and that such order could not have been passed by the learned Tribunal in the Revision Application filed against the Corporation, that too while rejecting the Revision Application.
16. In this background, it appears that at this stage present petition can be disposed of by remanding the proceedings to the learned Tribunal with clarification that learned Tribunal should await final outcome of the Appeals pending before the learned Appellate Courts at Vadodara and the Page 13 of 16 HC-NIC Page 13 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT learned Tribunal may pass appropriate fresh order in the Revision Application filed by the Corporation after taking into account the decision by the learned Trial Court with regard to the Sale deeds on the basis of which the Corporation claims that it purchased the land in question.
17. Therefore, following order is passed:
a. The impugned order dated 29.1.1999 passed by learned Tribunal is set aside.
b. The proceedings of revision application No. 3937 of 1994 are remanded to learned Tribunal. c. Learned Tribunal shall await the decision by learned Appellate Court at Vadodara, in Appeal being Regular Civil Appeal No. 63 of 2010 and Regular Civil Appeal No. 64 of 2010. d. After the decision is rendered by the learned Appellate Court in above mentioned two Appeals, learned Tribunal will take into account the said Page 14 of 16 HC-NIC Page 14 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT decision with reference to Sale Deeds and thereafter pass fresh order after hearing the parties to the Revision Application. e. It is clarified that it will be open to present respondent No. 3 to make appropriate application before learned Tribunal with a request that they may be permitted to join the proceedings of Revision Application No.397 of 1994. Learned Tribunal will consider the said Application and pass necessary order in accordance with law and having regard the fact of the case.
17. It is further clarified that it will be open to the revisionist i.e. Vadodara Municipal Corporation, State Government and concerned parties before learned Tribunal to raise all such contentions as may be available in light of the facts of the case. Differently put, the contention of the concerned interested and affected parties are kept open.
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HC-NIC Page 15 of 16 Created On Tue Aug 15 17:51:06 IST 2017 C/SCA/6359/1999 JUDGMENT With aforesaid clarification and directions, the petition is disposed off as partly allowed. Rule made absolute to said extent.
(K.M.THAKER, J.) saj Page 16 of 16 HC-NIC Page 16 of 16 Created On Tue Aug 15 17:51:06 IST 2017