Gujarat High Court
Himmatbhai Bhimjibhai Menia vs State Of Gujarat Through on 30 July, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
HIMMATBHAI BHIMJIBHAI MENIA....Applicant(s)V/SSTATE OF GUJARAT THRO SECRETARY C/WPPIL/130/2011 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 130 of 2011 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 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 ?
================================================================ HIMMATBHAI BHIMJIBHAI MENIA....Applicant(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 5....Opponent(s) ================================================================ Appearance:
MR.
MAULIN RAVAL, ADVOCATE for M/S RJ RAWAL ASSOC., ADVOCATE for the Applicant(s) No. 1 MR RAJESH R DEWAL, ADVOCATE for the Applicant(s) No. 1 MS SHIVYA A DESAI, ADVOCATE for the Applicant(s) No. 1 DS AFF.NOT FILED (N) for the Opponent(s) No. 1 MR.PARTH BHATT, AGP for the Opponent(s) No. 1
MR MK VAKHARIA, ADVOCATE for the Opponent(s) No. 5 MS MIHIR JOSHI, SR. COUNSEL with MS. AMRITA M THAKORE, ADVOCATE for the Opponent(s) No. 6 MS MANISHA LAVKUMAR, ADVOCATE for the Opponent(s) No. 2 NOTICE SERVED BY DS for the Opponent(s) No. 3 - 4 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :30/07/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this writ-application in the nature of a public interest litigation, the petitioner, a former Corporator of the Bhavnagar Municipal Corporation, claiming to be a social worker, has challenged the Resolution bearing No. 40 dated 30th July, 2011, passed by the respondent No.2, Bhavnagar Municipal Corporation, by which the Corporation resolved to transfer leasehold rights with respect to land bearing survey No.445 and part of the survey No.447 admeasuring approximately 105 acres, popularly known as "Moti Talav", situated within the limits of Bhavnagar Municipal Corporation, by inviting tenders for the same, for a period of 30 years.
2. The case made out by the petitioner in this petition may be summarised as under:-
2.1 Bhavnagar was a princely State and was ruled by King Krishnakumar Sinhji before the independence of India. After the independence, Bhavnagar ceased to be a monarch State. The then erstwhile King through his Vazir handed over the possession of several parcels of land that were owned, occupied and possessed by the Ex-State of Bhavnagar. The said lands were transferred under the documents known as "Huzurnama".
According to the petitioner, the Huzurnama is a vital piece of document with regard to the land, which were transferred either to the Government of India or to the State Government.
2.2 According to the petitioner, the former Bhavnagar State transferred and handed over the possession of the land bearing the Revenue Survey No. 170, which at a later stage was given the Revenue Survey No.445, in favour of Bhavnagar Municipality, which is the subject matter of the present petition, along with the other parcels of land.
2.3 According to the petitioner, the State Government, vide letter dated 9th May, 1963, (Annexure "C" to the petition) informed the authorities concerned that the Government had revoked its earlier Resolution dated 26th March, 1963, by which it was resolved that the open Government lands situated within the limits of the municipality would be continued to be disposed of by the Government and the sale proceeds or rent, as the case may be, which was being transferred to the municipalities would thereafter be credited to the treasury of the State Government.
2.4 In the year 1965, the State Government, vide Resolution dated 10th August, 1965, conferred the rights to deal with the property in question in favour of the Bhavnagar Municipal Corporation, subject to certain terms and conditions. The condition No.3 in the said Resolution dated 10th August, 1965 makes it very clear that the prior permission of the Revenue Department of the State of Gujarat shall be obtained by the municipality before dealing with the land in question. The condition No.4 further provided that the land which may be allotted by the State Government shall be used only for the purpose for which it was being allotted and for no other purpose.
2.5 According to the petitioner, although the powers with regard to the management of the land in question was limited and made subject to conditions, the Bhavnagar Municipal Corporation resolved to dispose of the land by inviting tenders for the purpose of giving leasehold rights for a period of 30 years to a private party i.e. the respondent No.6 herein, without obtaining any permission from the State Government. Such Resolution passed by the Corporation was without complying with the provisions of law and without proper assessment of the recent market value.
2.6 It is also the case of the petitioner that the land in question falls within the Coastal Zone Regulations and during the high tide, there is accumulation of backwater in the said land. The respondent-Corporation has not obtained any permission either from the State or the Central Government in that regard. It is also the case of the petitioner that although the respondent Corporation is fully aware of the fact that the land in question has been reserved for the purpose of salt farming according to the Resolution dated 10th August, 1965, still with a malafide intention proceeded to pass the impugned Resolution to lease the land in favour of the respondent No.6 for an industrial purpose.
2.7 It is also the case of the petitioner that even according to the proposed development plan published under the Gujarat Town Planning and Urban Development Act, 1979, the land in question has been shown as a water body and, therefore, no development is permissible. The Durasti patrak prepared by the Revenue authority, more particularly by the District Inspector of Land Records (TILR), Bhavnagar, clearly specifies in column No.15 that the land has been reserved for the manufacture of salt i.e. for salt farming. Even in the 7/12 extracts of the Revenue Survey No.445 and part of the survey No.447, the use of the land in question has been shown "for the purpose of manufacturing and production of salt". According to the petitioner, in the letter dated 8th January, 1965, addressed by the Collector, Bhavnagar to the Industries Department of the State Government, it has been specifically stated that the backwaters enter within the land during the high tide and, therefore, the land in question was suitable for salt farming. It has also stated in the said letter that since the land is filled with the water at the time of high tide, it clearly indicates that the land in question falls within the Coastal Zone Regulations (CRZ). According to the petitioner, the land in question, earlier in point of time, was given on a lease to one M/s. Prem Magnesium for a period of 20 years. After the expiry of the said period of lease, Prem Magnesium had requested the Collector to renew the lease deed for a further period, but the same was rejected by the Collector.
2.8 According to the petitioner, Prem Magnesium entered into a litigation with the Municipal Corporation, but the details regarding the said litigations are not available with the petitioner. It has been alleged by the petitioner that the total area of the land in question is 105 acre i.e. 4,254,045.2 square meters, whereas in the Resolution, the area shown has been only 385,500 square meters, and the same has been transferred in favour of the respondent No.6 by granting lease hold rights for an industrial use for an amount of Rs. 55,14,14,000/-. This, according to the petitioner, is in contravention of the provisions of the Bombay Provincial Municipal Corporation Act (for short "the BPMC Act").
2.9 According to the petitioner, a draft Town Planning Scheme has been declared by the State Government and in the said draft Town Planning Scheme, the land has been reserved for the purpose of "salt agriculture", and in such circumstances, the Corporation had no power or the authority to transfer the lease hold right in favour of a private party. It is also the case of the petitioner that the land in question belongs to the State Government and the respondent Corporation has no right, title or interest over the same. The petitioner has relied on a decision of the Supreme Court, delivered in the case of Bhavnagar Municipality Vs. Union of India and anr., reported in AIR 1990 SC 717 to show that the Bhavnagar Municipal Corporation has no right, title or interest over the land. In such circumstances referred to above, the petitioner has prayed for the following reliefs:-
(A) Be pleased to quash and set aside the impugned resolution no.40 dated 30.7.2011 annexed at Annexure-A and further be pleased to stay the operation, implementation and execution of the resolution dated 30.7.2011 passed by the Corporation.
(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, restraining the respondents from disposing of the land bearing City Survey No.170, (Revenue Survey no.445 & part of Revenue Survey no.447) situated at Moti Talav Road, Kumbharwada, Bhavnagar (known as 'Prem Magnesium') as per its resolution dated 30.7.2011.
(C) Be pleased to restrain the respondents from disposing of the land bearing City Survey No.170, (Revenue Survey no.445 & Part of 447) admeasuring 3,85,500.57 Sq.
Mtrs. situated at Moti Talav Road, Kumbharwada, Bhavnagar (known as 'Prem Magnesium') without taking prior sanction and/or without seeking prior permission of the State Government as per condition no.3 & 4 of Resolution dated 10.8.1965 at Annexure-D and also under the provisions of Section 79 of the Bombay Provincial Municipal Corporation Act, and permission of the MOEF, Government of India, as per CRZ Notification in the interest of justice.
(D) Pending admission, hearing and final disposal of this Special Civil Application, be pleased to restrain the respondents from disposing of the land bearing City Survey No.170, (Revenue Survey no.445 & Part of 447) admeasuring 3,85,500.57 Sq. Mtrs. Situated at Moti Talav Road, Kumbharwada, Bhavnagar (known as 'Prem Magnesium') and the status-quo may be ordered to be maintained by the respondents with respect to the aforesaid land;
(E) Be pleased to pass such other and further order/s as deemed fit, just and proper by this Hon'ble Court. "
3. Stance of the respondent No.2, Bhavnagar Municipal Corporation:
3.1 On behalf of the Bhavnagar Municipal Corporation, an affidavit has been affirmed by the Legal Officer, inter-alia highlighting the following aspects of the matter:-
(a) The petition in the nature of a PIL deserves to be rejected solely on the ground that relevant material has been deliberately suppressed by the petitioner;
(b) The land in question has been subjected to various litigations and has a chequered history. One Prem Magnesium, a Partnership firm had applied for a lease of the land in the year 1965, for the establishment of Magnesium industry. The State Government, assuming that the land had vested in the State, had granted the lease for a period of 20 years. Even on the day when the lease was granted, there was a controversy between the State and the Municipal Corporation regarding the title to the said land. For that reason, Prem Magnesium had executed an undertaking in writing dated 7th December, 1964, in favour of the Corporation to the effect that if the land was ultimately held to be of the Municipal Corporation, Prem Magnesium would pay the lease rent to the Municipal Corporation.
(c) In the context of the aforesaid controversy, the Municipal Corporation had filed a Special Civil Suit No. 4 of 1969 for a declaration of title in respect of the land in question, before the Court of the Civil Judge (Senior Division). The suit was dismissed by the learned Civil Judge, against which the Corporation filed a Regular First Appeal in this Court, being First Appeal No. 713 of 1974. The appeal was partly allowed vide judgment and order dated 23rd December, 1982. This Court declared the land in question to have been vested in the Municipal Corporation, subject to the then prevailing statutory provisions of the concerned Municipal Acts applicable to the municipality. Accordingly, a declaration of the ownership of the land in question from 19th January, 1948 was granted by this Court, subject to the conditions laid down by the Government Notification dated 10th August, 1965.
(d) The lease, which was granted in favour of Prem Magnesium expired on 20th April, 1986 and an intimation in that regard was given to Prem Magnesium as early as on 21st March, 1986. Prem Magnesium had applied for renewal of the lease by application dated 25th March, 1986, which was rejected.
During the pendency of the renewal application, the officers of the Municipal Corporation had visited the site and had found that no industry had been established on the land in question and the land was lying completely unused and idle. The Corporation, accordingly, came to the conclusion that the land was not put to the purpose for which the lease had been granted and as the lease period had already expired on 20th April, 1986, Prem Magnesium was informed vide letter dated 9th September, 1986 to hand over the possession of the land to the Municipal Corporation and to pay up the arrears of the rent.
(e) A notice under Section 4, sub-section (1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1974 dated 23rd September, 1986 was issued on Prem Magnesium. After the issuance of the notice, the competent officer under the aforesaid Act proceeded further and passed an order directing the lessee i.e. Prem Magnesium to hand over the possession of the land and also to deposit the arrears of the lease amount quantified at Rs. 4,565.50 paise.
(f) Being dissatisfied by the order of the competent authority, Prem Magnesium preferred an appeal under Section 9 of the said Act. The Appellate authority under the Act, 1974, allowed the appeal filed by Prem Magnesium and set aside the order of the competent officer.
(g) Being dissatisfied with the order passed by the Appellate Court, the Municipal Corporation preferred SCA No. 5478 of 1993, challenging the decision of the Appellate authority. The learned Single Judge of this Court vide order dated 3rd April, 2001, recorded a finding that the order of the Appellate authority was grossly incorrect and was based on a total misunderstanding of the law. Accordingly, the learned Single Judge quashed and set aside the order passed by the Appellate authority and allowed the SCA filed by the Municipal Corporation. The learned Single Judge confirmed the order passed by the competent officer under the Act to the extent it directed the eviction of Prem Magnesium, but refused to confirm that part of the order which quantified the arrears of the lease amount.
(h) Feeling dissatisfied Prem Magnesium filed a Letters Patent Appeal No. 431 of 2001 before this Court. The Division Bench of this Court found that the Letters Patent Appeal was not maintainable and had no substance even on merits and accordingly, vide order dated 26th June, 2001, the appeal was dismissed.
(i) Feeling dissatisfied with the order passed by the Division Bench of this Court dismissing the LPA, M/s. Prem Magnesium preferred Special Leave to Appeal(Civil) No. 17659 of 2001. However, the Supreme Court vide order dated 16th October, 2001 dismissed the SLP as withdrawn.
(j) The possession of the land in question was taken over by the Corporation from M/s.Prem Magnesium on April 25, 2001 by drawing a panchnama.
(k) However, by suppressing such material facts, M/s.Prem Magnesium started a second round of litigation by filing Regular Civil Suit No.73 of 2002 in the Court of the learned Civil Judge, Junior Division, Bhavnagar. In the said Civil Suit, injunction was also prayed for against the Corporation below Exhibit 5. The learned Civil Judge was also kept in dark and was not made aware of the checkered history of the earlier round of litigation which had ended with dismissal of the Special Leave to Appeal by the Supreme Court and thereby obtained an ex-parte order of status quo. The Corporation on service of summons and the ex-parte injunction order, preferred an appeal before the District Court, Bhavnagar being Miscellaneous Civil Appeal No.17 of 2002. The District Court suspended the operation of the ex-parte order of status quo and thereafter allowed the Miscellaneous Civil Appeal vide order dated September 30, 2004, directing the parties to appear before the Civil Judge, (J.D.);
(l) The learned Civil Judge (J.D.), after hearing the parties concerned, rejected the application at Exhibit 5 vide order dated December 06, 2004. Against the said order passed by the Civil Judge, no appeal was preferred and the Civil Suit still remains pending before the Civil Court.
(m) The respondent-Corporation thereafter took a decision to divide the land bearing City Survey No.170 admeasuring 99 Acres and 10 Gunthas into sub-plots. The Corporation resolved vide Resolution dated February 19, 2003 to lease the said land by way of an auction. The General Body, however, vide Resolution dated April 20, 2005 thought fit to cancel the auction since it found that the same was manipulated as only one party remained present during the auction and made an attempt to procure only 4 to 5 plots out of total 143 plots on lease. The Corporation noticed that a syndicate had been formed, as a result of which the bids were received for only 4 to 5 plots although for the rest of the plots, though ideally situated, no bids were received. The Corporation took a decision that it would not be prudent to finalise the auction, more particularly when the bids received were only for few plots, as a result of which, the entire land would get wasted. Accordingly, the General Body resolved to lease the land in question as a whole as it realised that by leasing the sub-plots in piecemeal, there was a strong possibility of encroachment on the other parts of the land.
(n) On September 15, 2010, the Valuation Committee of the Corporation assessed the market value of the entire land to the tune of Rs.38,55,00,000/-. The Standing Committee vide Resolution No.476 dated February 28, 2011 thereafter resolved to grant the lease hold rights on a premium for the land in question. The Corporation thereafter issued an on-line E-Tender and invited offers from persons interested to obtain the lease hold rights over the land in question. Such decision to issue an on-line E-Tender was taken considering it to be one of the most transparent methods of tendering in recent times. Once a tender application is submitted, the same thereafter cannot be tampered with or manipulated by any person and cannot be even opened till its opening date and time.
(o) The tender was opened by all the members of the Tender Committee and two bids came up for consideration. One of I.B. Commercial Private Ltd.(respondent No.6) for Rs.55,14,14,000/- and the other of M/s.Rushil Industries for Rs.48,22,60,500/-. Since the bid of I.B.Commercial Pvt. Ltd. was the highest and much higher than the valuation of the land assessed by the authority, it was resolved to grant the lease in favour of respondent No.6-I.B. Commercial Pvt. Ltd.
(p) The Valuation Committee of the Corporation had valued the land at the rate of Rs.1000/- per sq.mtr. according to the market price prevailing on July 16, 2010. According to the then prevailing 'Jantri' price, the market value of the land as on April, 2011 was Rs.1350/- per sq.mtr. The offer of respondent No.6-I.B. Commercial Pvt. Ltd. was calculated at Rs.1438/- per sq.mtr., which was much higher than the then prevailing 'Jantri' price.
(q) Taking into consideration all the relevant aspects of the matter referred to above, the General Body of the Corporation resolved to allot the land on lease for a period of 30 years to the respondent No.6-I.B. Commercial Pvt. Ltd. at the price of Rs.55,14,14,000/-, subject to the condition that over and above the deposit of Rs.3,85,50,500/- by way of earnest money, 25% of the total amount would be deposited upon acceptance of the tender i.e. Rs.9,93,03,300/-, thus, aggregating to Rs.13,87,53,500/-. The entire amount was deposited by the respondent No.6-I.B. Commercial Pvt. Ltd. with the Corporation by way of a cheque. One of the terms of the grant of lease further stipulates that over and above the premium amount, 1.5% of the total premium amount payable is to be paid by way of annual lease and which shall be enhanced at the rate of 50% every 10 years. Thus, I.B. Commercial Pvt. Ltd. is obliged to pay a sum of Rs.82,07,120/- every year, which will be enhanced every 10 years by 50%.
(r) The Corporation has denied the allegations levelled by the petitioner that the land in question has been allotted in favour of the respondent No.6 without following any procedure of law. According to the Corporation, before finalising the deal with the respondent No.6, the prescribed procedure was scrupulously followed and the allegation of the petitioner that the land in question has been allotted without putting it to the auction, is devoid of any merit.
(s) It is also the case of the Corporation that with a view to create obstructions a Regular Civil Suit in a representative capacity came to be filed in the Court of the District Judge, Bhavnagar bearing Civil Suit No.364 of 2011, challenging Resolution No.40 of 2011 i.e. the Resolution which is the subject matter of challenge in the present petition. A public notice also came to be issued in that regard vide order dated August 12, 2011. According to the Corporation, the erstwhile partner of M/s.Prem Magnesium preferred an application to be joined as a co-plaintiff and the said application has been allowed and accordingly, M/s.Prem Magnesium came to be joined as the plaintiff. The hearing of injunction application at Exhibit 5 is still pending.
(t) According to the Corporation, as no ex-parte relief was granted in the said proceedings and notice was issued upon the Corporation in the month of August, 2011, the present writ-petition came to be filed in the month of September, 2011. Regular Civil Suit No.364 of 2011 seeks to challenge the very same Resolution No.40 of 2011 passed by the General Body of the Bhavnagar Municipal Corporation, which is the subject matter of challenge in the present petition also.
(u) It has been alleged that the petitioner is a former Corporator and the present petition is at the behest of M/s.Prem Magnesium for extraneous considerations.
(v) It has been denied by the Corporation that the land in question is a part of the back-water of creek of the Arabian Sea and is covered under the Coastal Regulation Zone and also by its notification, as a result of which, it could not have been allotted without prior approval of the State Government or the Central Government. According to the Corporation, for such restrictions to be made applicable, the land in question must be within 500 metres from the sea front high tide line as provided in the Coastal Regulation Zone Notification issued by the Ministry of Environment and Forests. According to the Corporation, the land in question is approximately 14 kilometres away from the open sea and 1.65 kilometre away from the nearest creek. In that view of the matter, the land does not fall within the regulations stipulated under the Coastal Regulation Zone. It is also the case of the Corporation that assuming for a moment that the land falls within the Coastal Regulation Zone, then in such circumstances, the regulations restrict certain type of usage, but does not restrict the disposal of the land by its owner by way of sale, gift or lease.
(w) The Corporation has denied that the land in question is a Water Body. According to the Corporation, the land in question is a part of the industrial zone under the development plan sanctioned by the State Government in exercise of powers under Section 17 of the Gujarat Town Planning and Urban Development Act in the year 1986 being revised at an interval of every 10 years.
(x) According to the Corporation, the reliance placed by the petitioner on the Division Bench decision of this Court in the case of Shailesh R. Shah v. State of Gujarat, reported in 2002 (3) GLR 2295, has no application to the present case as in the list of notified water bodies prepared by the Narmada Water Resources, Water Supply and Kalpasar Department, issued vide Notification dated January 10, 2011 pursuant to the directions issued by the Division Bench of this Court in the case of Shailesh R. Shah (supra), the land in question is not included.
(y) According to the Corporation, even going by the satellite imagery, the land in question is not a water body and thus, would not be covered by the Coastal Regulation Zone Notification.
(z) It has also been denied by the Corporation that the land in question has been reserved by the State Government under the Draft Development Plan for the purpose of salt agriculture. According to the Corporation, the petitioner has not been able to substantiate such allegations by any cogent and convincing evidence in that regard.
(aa) It is also the case of the Corporation that the say of the petitioner that the Corporation was obliged to obtain prior permission of the State Government in terms of Condition No.3 of the Government Resolution dated August 10, 1965 before disposing of the land by lease, is also without any substance or merit. The Corporation has tried to explain that at the time of passing of the Government Resolution dated August 10, 1965, there were municipalities functioning under the Gujarat Municipalities Act, 1963 within the District of Bhavnagar, including the city of Bhavnagar. In view of the provisions as contained under Section 65 of the Gujarat Municipalities Act, 1963, prior permission of the State Government for granting land on lease for a period of more than 10 years was necessary and accordingly, such a condition was laid in Resolution dated August 10, 1965. According to the Corporation, the same was a municipality till February, 1982. Thereafter, it attained the status of being a municipal corporation. The provisions of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as 'the BPMC Act'), are made applicable and in view of the provisions as contained in Section 79 of the Act, the General Body of the Corporation has powers to dispose of the municipal property. According to the Corporation, such position has already been acknowledged by the State Government vide its letter dated May 10, 1982, clarifying that the Corporation has powers to dispose of the properties of the Corporation under Section 79 of the Act and the Government will have no say in such matters.
(bb) According to the Corporation, the petitioner is a former Corporator and while in office, at no point of time, he had raised any objection of any nature when decision was taken to auction the land or transfer the lease hold rights of the same. On the contrary, the petitioner was a party to such resolutions, which were passed earlier in point of time. If the petitioner claims to be a public spirited citizen very much concerned about the land in public interest, then why the objections which have been raised in the petition were not raised at any point of time when he was one of the Corporators of the Corporation.
(cc) According to the Corporation, the present petition is at the instance of M/s.Prem Magnesium and the petitioner is only a name-lender. According to the Corporation, the petition deserves to be rejected as the same is nothing but an abuse of process of law.
4. Stance of the Collector, Bhavnagar - Respondent No.4.
4.1 According to the Collector, Bhavnagar, the land in question is known as Moti Talav and was not a part of Bhavnagar Municipal Corporation as on January 19, 1948.
4.2 According to the Collector, the land was allotted in favour of M/s.Prem Magnesium Industries on a lease for a period of 20 years for the purpose of salt production vide order dated April 29, 1966 by the State Government.
4.3 Such decision was challenged by the Bhavnagar Municipal Corporation by filing a Civil Suit No.4 of 1969 which was dismissed vide judgment and decree dated December 04, 1970.
4.4 Being dissatisfied with the judgment and decree passed by the Civil Court dismissing the suit, the Bhavnagar Municipal Corporation challenged the same by way of filing First Appeal No.713 of 1974. First Appeal No.713 of 1974 filed by the Corporation was partly allowed by the High Court vide judgment and decree dated February 23, 1982 by which it was declared that the Bhavnagar Municipality was the owner of the land in question, subject to the conditions laid down in the Government Resolution dated August 10, 1965.
4.5 According to the Collector, the Government Resolution dated August 10, 1965 issued by the Revenue Department of the State Government clearly specifies that before selling any portion of the land or transferring any lease hold rights, the permission of the Revenue Department is a must, if the land is transferred at a rate of more than Rs.25 per sq.mtr. According to the Collector, before transferring the lease hold rights in favour of the respondent No.6, the Corporation was obliged to obtain necessary permission of the Revenue Department in terms of the Resolution dated August 10, 1965 and having failed to do so, the transaction in question would be illegal.
4.6 According to the Collector, the land situated at village Vadva bearing Survey Nos.445 and 447/1, runs in the name of the Government even according to the revenue records. It is also the case of the Collector that the land in question belongs to the Government and the same is a 'kharaba' land. It has been denied that the land was reserved earlier for salt farming.
4.7 However, despite the above, it has been prayed by the Collector, Bhavnagar, that the petitioner is not entitled to any reliefs.
5. Stance of the respondent No.6:
5.1 According to the respondent No.6, the Corporation issued public notices in newspapers initiating the process of E-Tender for sale of lease hold rights for a period of 30 years in the subject property by inviting on-line offers. At that time also, the petitioner had not raised any objection of any nature. According to the respondent No.6, it purchased the bid documents and submitted its tender within the stipulated time along with the prescribed amount towards earnest money deposit (EMD) to the tune of Rs.3,85,50,500/-. The bids were opened in June, 2011 and its bid of Rs.55,14,14,000/- turned out to be the highest. According to the respondent No.6, it offered an amount at the rate of Rs.1430.39 per sq.mtr. which was much higher than the then prevailing 'Jantri' price of the said property, which according to the respondent No.6 was Rs.1350/-
per sq.mtr. and also much higher than the price determined by the Valuation Committee at the rate of Rs.1000/- per sq.mtr.
5.2 The Estate Officer of the Corporation addressed a letter of explanation dated June 18, 2011 informing the respondent herein that it had emerged as the highest bidder and that its offer had been accepted and thereby asking the respondent herein to pay a sum of Rs.9,93,03,300/- within 15 days together with EMD which constituted 25% of the total offer of the respondent herein.
5.3 Accordingly, on the same day the respondent herein paid the said amount of Rs.9,93,03,300/-.
5.4 According to the respondent No.6, pursuant to the Resolution No.40 the Estate Officer of the Corporation vide letter dated August 10, 2011 called upon the respondent herein to deposit the balance 75% of the amount latest by January 29, 2012 and further to get the subject property measured by the City Survey Authorities. At that point of time, a public notice appeared in the newspapers on August 12, 2011 under the provisions of Order 1 Rule 8 of the Code of Civil Procedure, 1908, wherein it was stated that Regular Civil Suit No.364 of 2011 had been filed by one Vinod Kanjibhai Chauhan and one Kalpesh Ashvinbhai Maniyar against the State of Gujarat and Bhavnagar Municipal Corporation, including the Mayor of the Corporation in the Court of the Additional Senior Civil Judge, Bhavnagar, challenging the action of the Corporation transferring the land in question.
5.5 According to the respondent No.6, it made inquiries in that regard and learnt that the suit had been filed on or about August 10, 2011 without even joining the respondent herein as a party and no ex-parte injunction had been granted as prayed for by the plaintiffs. Accordingly, the respondent herein had filed an application seeking to be joined as a defendant in the said suit, which was allowed by the Civil Court.
5.6 According to the respondent No.6, the area of the land in question had been estimated to be admeasuring 3,95,557 sq.mtrs., but the actual area as measured by the City Survey Authority came to 3,67,490 sq.mtrs. and, therefore, the Estate Officer of the Corporation addressed a letter dated January 11, 2002 informing the respondent herein in that regard and proportionately reducing the total amount required to be paid by the respondent herein to the tune of Rs.52,56,54,021/-. Accordingly, the respondent herein was asked to make the balance payment of 75% of Rs.38,98,00,521/- and to deposit the advance three years' lease amount to the tune of Rs.2,36,54,431/- by January 29, 2012.
5.7 The respondent herein was further informed for the first time vide letter dated January 11, 2012 that the present petition had been filed challenging the resolution dated July 30, 2011 and was further informed that the aforesaid payments to be made by the respondent herein would be subject to the final outcome of both i.e. Regular Civil Suit No.364 of 2011 and the present petition.
5.8 According to the respondent herein, the present petition was also filed without impleading it as a party respondent. It is only when the respondent herein learnt about filing of the present petition that the Civil Application No.2253 of 2012 was filed seeking to be impleaded as the respondent, which was allowed vide order dated November 01, 2012.
5.9 It is the case of the respondent herein that after a bi-partite hearing of the application for interim injunction filed by the plaintiffs of Regular Civil Suit No.364 of 2011, the Civil Court vide order dated January 20, 2012 rejected the application for interim injunction. The respondent herein was informed by the Estate Officer of the Corporation vide letter dated January 23, 2012 that since the application for interim injunction filed in Regular Civil Suit No.364 of 2011 had been rejected, the amount of Rs.38,98,00,521/- and Rs.2,36,54,431/- respectively could be deposited by the respondent herein and the same would be accepted by Bhavnagar Municipal Corporation, subject to final outcome of the present petition as well as Regular Civil Suit No.364 of 2011. Accordingly, the respondent herein deposited a sum of Rs.38,98,00,521/- and Rs.2,36,54,431/- on January 27, 2012.
5.10 On December 31, 2012 the possession of the land in question was handed over to the respondent herein by the Bhavnagar Municipal Corporation by drawing a Rojkam and a possession receipt was also issued in that regard. On February 01, 2012, the allotment letter was also issued in favour of the respondent herein.
5.11 On March 28, 2012, a lease deed in respect of land in question was also executed between the respondent herein and the Bhavnagar Municipal Corporation.
5.12 According to the respondent herein, at the time of grant of the lease to M/s.Prem Magnesium and even at the time when the Corporation in the past made attempts to auction the subject property in sub-plots, no objection was raised by the petitioner or by any other person on the ground that the Bhavnagar Municipal Corporation does not possess the absolute right to sell or transfer any right over the land in question or that the land in question could not have been transferred since it purportedly falls within the Coastal Regulation Zone or that it is a water body, etc. and all these facts would suggest that the Regular Civil Suit No.364 of 2011 and the present petition have been filed at the behest of M/s.Prem Magnesium.
5.13 According to the respondent herein, there is a concluded contract between it and the Bhavnagar Municipal Corporation so far as the land in question is concerned on a 30 years' lease basis and certain legal rights have vested in favour of the respondent herein, of which the respondent herein should not be deprived of.
5.14 The respondent herein has invested huge sum of money for acquiring lease hold rights over the land in question and has also made further investment for developing the property. In such circumstances, according to the respondent herein, when certain rights have been vested in its favour and having acted in furtherance of the same, it would be extremely unreasonable and harsh if any relief is granted as prayed for in the petition.
5.15 The grant of 30 years lease over the land in question is pursuant to a valid tender process which was initiated by widely publicising the same in the newspapers and in which the respondent emerged as the highest bidder and, therefore, it could not be said that the process adopted by the Corporation was not transparent. The price offered is much higher than the upset price and the Jantri price of the land in question.
5.16 According to the respondent herein, the subject property is not covered under the Coastal Regulation Zone. The respondent had requested the Institute of Remote Sensing, Annamalai University, Chennai, for conducting the survey as to High Tide Line (HTL) creek for the land in question. After conducting such survey, in August, 2012 the Institute of Remote Sensing gave a report with a map indicating the HTL creek. In any case, the Coastal Regulation Zone notification would not apply at this stage when only the lease hold rights of the land in question have been transferred. It has also been denied that prior permission of the State or the Central Government is required for transferring the lease hold rights in the land in question. According to the respondent, the land does not fall between High Tide Line and the Low Tide Line. Even at the time when the land was leased to M/s.Prem Magnesium and when the Corporation had made attempts to auction the land during the period between the years 2004 and 2009, no such grievance was raised. It has also been denied that the land is reserved or used as a salt pan since many years.
5.17 According to the respondent herein, the petition in the garb of a Public Interest Litigation is nothing but an abuse of process of law and the petitioner is just a name-lender.
6. Submissions on behalf of the petitioner:
6.1 Shri Maulin Raval, the learned advocate appearing for the petitioner, vehemently submitted that the land in question does not belong to the Bhavnagar Municipal Corporation and it is the State Government who is the lawful owner of the same. In such circumstances, the decision of the Corporation to transfer the lease hold rights of the land in favour of the respondent No.6 is contrary to the Huzurlekh of the year 1948 and the Government Resolution of the Revenue Department dated August 10, 1965.
6.2 Shri Raval submitted that the Corporation has not obtained any permission from the State Government as required under the provisions of Section 79 of the BPMC Act before finalising the decision to dispose of the land by giving lease hold rights in favour of the respondent No.6.
6.3 Shri Raval also submitted that the land in question falls within the Coastal Regulation Zone and the Corporation has not obtained any permission in that regard either from the State Government or from the Central Government.
6.4 Shri Raval submitted that the land is a lake and being a water body could not have been allotted in favour of the respondent No.6. Shri Raval further submitted that according to the Durasti Patrak of the Revenue Authority prepared by the District Inspector Land Records (DILR), Bhavnagar, the land has been shown as reserved for manufacturing of salt i.e. for salt farming as specified in Column No.15 of the 'Patrak'. In such circumstances, the Corporation could not have allotted the land in favour of the respondent No.6, as a piece of land reserved for one purpose cannot be permitted to be used for another purpose.
6.5 Shri Raval, therefore, submitted that his client has filed this petition bona fide in public interest and this Court should quash and set aside the impugned Resolution No.40 dated July 30, 2011 passed by the Bhavnagar Municipal Corporation. Shri Raval submitted that this Court may issue a writ of mandamus directing the Bhavnagar Municipal Corporation to take over the possession of the land from the respondent No.6 and thereafter, to maintain status quo.
7. Submissions on behalf of the Respondent No.2 - Bhavnagar Municipal Corporation:
7.1 Ms. Manisha Luvkumar, the learned advocate appearing for the Corporation vehemently submitted that the present petition filed in the nature of a public interest litigation is nothing but an abuse of process of law. Ms.Shah submitted that the present petition has been filed at the behest of M/s.Prem Magnesium who has still an eye over the land, although M/s.Prem Magnesium lost upto the Supreme Court after being evicted from the land in question.
7.2 Ms.Shah submitted that the petition deserves to be dismissed only on the ground that the same is not a genuine public interest litigation but the same has been preferred with an oblique and ulterior motive.
7.3 Ms.Shah submitted that the issue of title has been decided way back in the year 1982 by the Division Bench of this Court in First Appeal No.713 of 1974. Ms.Shah submitted that while allowing First Appeal No.713 of 1974 partly, which was filed by the Bhavnagar Municipal Corporation, a declaration has been given that the Corporation is the owner of the land from January 19, 1948 and was further declared to have been vested in the then municipality subject to the statutory provisions of the concerned Municipal Acts prevailing and applicable at the relevant point of time. According to Ms.Shah, now the issue of title cannot be reopened by this Court as the same has attained finality.
7.4 Ms.Shah submitted that reliance placed by the petitioner on the decision of the Supreme Court in the case of Bhavnagar Municipality v. Union of India, rendered in Civil Appeal No.365 of 1981 decided on November 17, 1989, reported in AIR 1990 SC 7170, has no application to the present case. According to Ms.Shah, the dispute in the said appeal before the Supreme Court was in connection with altogether a different land. Although the Supreme Court may have interpreted the documents of the then princely State of Bhavnagar as well as the Government Resolution dated August 10, 1965, the issue of title having once decided by the Division Bench of this Court, more particularly in connection with the land in question and no appeal being preferred against such decision, the same has attained finality and there should not be any further debate so far as the title over the land is concerned.
7.5 Ms.Shah further submitted that there is no merit in the contention of the petitioner so far as applicability of Section 79(F)(b) of the BPMC Act is concerned. According to Ms.Shah, under the provision of Section 79(F)(b) of the BPMC Act, prior sanction of the State Government is required to be obtained only if the land is being leased contrary to the terms of transfer. In the present case, there were no terms of transfer contained in 'Huzur Tharav' dated January 19, 1948. The Resolution dated August 10, 1965 only imposes certain conditions like (a) Public Auction, (b) Permission of the Government if at all the value is higher than Rs.25/- per sq.mtr. (c) Land can be given only for the purpose for which it is reserved in the development plan and (d) Usage of funds. There are no terms of transfer in the Resolution dated August 10, 1965. In such circumstances, according to Ms.Shah, the provisions of Section 79(c) of the Act would be applicable and not Section 79(F)(b) of the Act.
7.6 Ms.Shah submitted that the petitioner was a Corporator from the year 2002 to 2008. In the past, the Corporation had made several attempts to auction the property. The petitioner had participated in passing such resolutions. At no point of time, he had raised any such objections, which are sought to be raised now by way of the present petition. The petitioner had actually voted in favour of auctioning the property. According to Ms.Shah, even before the impugned Resolution dated July 30, 2011, the Corporation had passed a Resolution dated February 28, 2011 to auction the property. However, the petitioner had not raised any objection at that stage and even after the Corporation published advertisement in the month of April/May, 2011. Ms.Shah vociferously submitted that this petition is nothing but a creation of M/s.Prem Magnesium and the petitioner is just a name-lender.
7.7 Ms.Shah submitted that the Bhavnagar Municipal Corporation was earlier a municipality and was conferred the status of a Corporation in February, 1982. Section 65 of the Gujarat Municipalities Act, 1963, which provides for obtaining permission of the State Government will have no application in the present case as the parties would now be governed by the provisions of the BPMC Act, which do not provide for obtaining any prior permission of the State Government.
7.8 Ms.Shah invited our attention to the letter of the State Government dated May 10, 1982, which states that after formation of the Corporation, it has power to dispose of lands under Section 79 of the BPMC Act and the State Government has no role to play. Ms.Shah also invited our attention to the fact that the said letter deletes Condition No.3 of the Government Resolution dated August 10, 1965.
7.9 Ms.Shah submitted that the contention of the petitioner that the land was reserved for salt farming and is now being given for industrial purpose is also devoid of any merit. According to Ms.Shah, even according to the affidavit filed by the Collector, the land is not reserved for salt farming and the same is a 'kharaba' (waste) land.
7.10 Ms.Shah submitted that there is no merit in the contention that the land is a lake and, therefore, could not have been allotted for industrial purpose. Ms.Shah submitted that the land is a part of industrial zone under the development plans. According to Ms.Shah, mere use of a name of 'Moti Talav' would not make the land a lake. Further, in the notification dated January 10, 2005, issued by the Narmada Waters Resources, Water Supply and Kalpasar Department of the State Government, which provides a list of all notified lakes and water bodies in the State of Gujarat, there is no reference of the land in question in the said notification.
7.11 Ms.Shah submitted that the land is not a part of the Coastal Regulation Zone but the same is 14 kms. away from the open sea and 1.65 km. away from the nearest creek and the same is substantiated by a google map which is on record.
7.12 Ms.Shah submitted that even otherwise also the Coastal Regulation Zone notification does not prohibit leasing of a property. Till this date, no objection has been raised in this regard by the authorities specified in the Coastal Regulation Zone notification.
7.13 In such circumstances referred to above, Ms.Shah submitted that there being no merit in this petition, the same may be rejected with costs.
8. Submissions on behalf of the respondent No.6 - I.B. Commercial Pvt.Ltd.:
8.1 Shri Mihir Joshi, learned Senior Counsel assisted by Ms.Amrita Thakore appearing on behalf of respondent No.6, vehemently submitted that the petition deserves to be dismissed with heavy costs as the same is filed with an ulterior and oblique motive at the instance of none other than M/s.Prem Magnesium, who has still an eye over the land in question.
8.2 Shri Joshi submitted that after complying with all the necessary legal formalities, his client has acquired the lease hold rights over the land by making payment of more than Rs.40 crore and has also invested a huge amount in the development of the land. Shri Joshi submitted that there is not an element of truth in any of the allegations levelled by the petitioner in the present petition. At any cost, the persons interested in the land, more particularly M/s.Prem Magnesium wants to see that his client is not able to go ahead with the project and would come to terms with them. According to Shri Joshi, such being the intention of the petitioner and the persons at whose behest the petition has been filed, this petition deserves to be dismissed by imposing heavy costs.
9. Submissions on behalf of the State Government:
9.1 Shri Parth H. Bhatt, the learned Assistant Government Pleader appearing for the State Government, submitted that although he does not support the petitioner but maintains the stance that the land could not have been leased in favour of respondent No.6 without obtaining prior permission of the State Government. Shri Bhatt relied on the Government Resolution dated August 10, 1965. He further submitted that the land in question is still running in the name of the Government in the revenue records and the same is a 'kharaba' (waste) land. He also submitted that the land in question was not reserved at any point of time for salt farming. He, however, submitted that the petition deserves to be dismissed.
10. The picture that emerges on cumulative assessment of the pleadings and the materials on record is thus:
a) Bhavnagar is a city which was founded in1723 AD by Shri Bhavsinhji Gohil, and was named after its founder and ruler. Till the independence of India, Bhavnagar was an independent State ruled by the Gohil Rajput clan. In 1947, the Deputy Prime Minister of the newly independent Indian Union Shri Sardar Vallabhbhai Patel undertook the ambitious and complex process of political integration of India to unify 565 princely States with the Union of India. The last princely ruler of Bhavnagar late Shri Krishnakumar Sinhji handed over the administration of his State to the people's representative in 1948 and thus, Bhavnagar State became the first State to merge with the Democratic Indian Union in 1948;
(b) When the administration of the then Bhavnagar State was handed over to the people's representative, a Hazoor Tharav was issued by the Maharaja of Bhavnagar, pursuant to few proposals put forth for the approval of the then Maharaja by the Chief Diwan of Bhavnagar State, named Anandrai Prabhashankar. Shri Anandrai Prabhashankar, who was designated as the Chief Diwan of the State placed 14 proposals in writing for the approval of the then Maharaja of Bhavnagar;
(c) One of the proposals with which we are concerned was that whatever rights the State had regarding the disposal of the lands situated within the limits of Bhavnagar Municipality and the Municipalities of other Boroughs be conferred on the concerned Municipalities. Such a proposal came to be approved by an order dated 19th January, 1948, signed by Late Shri Krishnakumar Sinhji, the then Maharaja of Bhavnagar;
(d) Consequently, the land in question known as "Moti Talav" situated within the limits of the Bhavnagar Municipality got vested in the Bhavnagar Municipality, by virtue of such Hazoor Tharav. In other words, all rights the Bhavnagar State had in connection with the disposal of the land in question got vested in the Bhavnagar Municipality;
(e) After the merger of the Bhavnagar State on formation of the Saurashtra State, the Saurashtra State became the successor in trust of Ex-Bhavnagar State. Thereafter, on the formation of the bigger bilingual Bombay State, the then Bombay State succeeded to the Saurashtra State and ultimately on the formation of the Gujarat State, the State of Gujarat became the successor State to the aforesaid earlier States. The record further reveals that the State of Gujarat issued an order dated 26th March, 1963, by which the earlier order of Ex-Bhavnagar State being Hazoor Tharav dated 19th January, 1948 was rescinded. In light of such developments, there was lot of protest, as a result of which the Government of Gujarat, in its Revenue Department, issued another Resolution dated 10th August, 1965, by which it decided that the Hazoor Tharav No. 37 passed by the former ruler of the Bhavnagar State, dated 19th January, 1948 would remain in existence with reference to those lands which were situated within the limits of the concerned Municipalities that might be existing on the date of that order dated 19th January, 1948, but with a stipulation that the concerned Municipalities will have a right to sell or lease out the concerned lands situated within their limits subject to certain conditions which were laid down by the order of the State of Gujarat. The land in question is also included;
(f) In the meantime, the Collector of Bhavnagar allotted the land in question on a lease for a period of 20 years in favour of one Prem Magnesium, vide order dated 8th January, 1965, by fixing a particular amount of rent to be recovered from the lessee. The said lease was granted by the Collector in favour of Prem Magnesium for manufacture of salt;
(g) Such decision of the Collector to allot the land in favour of Prem Magnesium became a subject matter of challenge before the Civil Court as Bhavnagar Municipality thought fit to file a Suit for declaration and possession on the premise that the land in question was of the ownership of Bhavnagar Municipality and the Collector could not have allotted the land in favour of Prem Magnesium on lease;
(h) The Civil Suit filed by the Municipality came to be dismissed by the Civil Court, against which First Appeal No. 713 of 1974 was filed by the Bhavnagar Municipality in this Court. Prem Magnesium also lodged it's cross objections in the said First Appeal;
(i) A Division Bench of this Court vide judgment and order dated 23rd December, 1982, partly allowed the Appeal filed by the Bhavnagar Municipality and declared that Bhavnagar Municipality was the owner of the land in question since 19th January, 1948. This Court further declared that the land in question had vested in the Municipality subject to the then prevailing statutory provisions of the concerned Municipal Acts applicable to the Municipality and subject to further clarification that such land had vested in the Municipality subject to the conditions laid down by the Government Notification dated 8th January, 1965;
(j) It appears that against the judgment and order passed by the Division Bench of this Court, no appeal was preferred before the higher forum and the said judgment attained finality.
(k) In the meantime, the lease which was granted in favour of Prem Magnesium expired on 20th April, 1986. Since Prem Magnesium failed to hand over the possession of the land, proceedings were initiated for eviction under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The competent officer, in exercise of his powers under Section 4(1) of the Act, passed an order directing Prem Magnesium to hand over the possession of the land in question. Such order was challenged by Prem Magnesium by filing an appeal before the appellate authority and the appellate authority set aside the order which was passed by the competent authority;
(l) The Bhavnagar Municipal Corporation, therefore, challenged the order passed by the appellate authority by filing SCA No. 5478 of 1993, and the same was allowed by a learned Single Judge of this Court vide order dated 3rd April, 2001;
(m) Feeling dissatisfied, the lessee filed Letters Patent Appeal No. 431 of 2001, which came to be dismissed by a Division Bench of this Court vide order dated 26th June, 2001.
(n) Being dissatisfied with the dismissal of the Letters Patent Appeal, the lessee filed an SLP No. 17659/01 before the Supreme Court, which was dismissed as withdrawn vide order dated 15th October, 2001;
(o) It appears from the materials on record that during the pendency of such litigation, the possession of the land was taken over by the Bhavnagar Municipality from the lessee;
(p) The Bhavnagar Municipality thereafter decided to auction the land in question by dividing the land in sub-plots. Between 2000 and 2008, the petitioner herein was a Corporator of Bhavnagar Municipal Corporation and was a party to such Resolutions passed by the General Body of the Corporation, by which it was decided that the land in question be divided in sub-plots and auctioned. However, the Corporation was not able to implement its decision. In 2008, the petitioner ceased to be the Corporator of Bhavnagar Municipal Corporation.
(q) Thereafter, the Resolution No. 40, which has been impugned in the present petition was passed, and the respondent No.6 being the highest bidder, was allotted the land on a lease on payment of around Rs. 55 crore;
(r) It also appears that in 2002, once again the erstwhile lessee started a second round of litigation, being Regular Civil Suit No. 73 of 2002, in the Court of the learned Civil Judge (Junior Division) at Bhavnagar. Lastly, a Regular Civil Suit in a representative capacity also came to be filed in the Court of the learned Civil Judge (Senior Division), Bhavnagar, being RCS No. 364 of 2011, challenging the very same Resolution, which is the subject matter of challenge in the present writ-application.
11. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration in this petition in the nature of PIL is, whether the same is a genuine public interest litigation, or the petitioner is merely a name lender?
Ordinarily, court would allow litigation in public interest if it is found :
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right, and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or malafide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busy body of meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
12. It is also the duty of the Court to ensure that the petitioner has not been setup by others and is nothing but a 'name lender'. In the well-known pronouncement of the Supreme Court in the case of the Janata Dal v/s. H.S.Chowdhary and others, reported in AIR 1993 SC 892, the Supreme Court in detail has explained Public Interest Litigation its origin and meaning. In paragraphs 48, 49, 50 and 51, it has been observed as under :-
48. The question, "what 'PIL' means and is?" has been deeply surveyed, explored and explained not only by various judicial pronouncements in many countries, but also by eminent Judges, jurists, activist lawyers, outstanding scholars, journalists and social scientists etc. with a vast erudition. Basically the meaning of the words 'Public Interest' is defined in the Oxford English Dictionary, 2nd Edition, Vol. XII as "the common well being .........also public welfare".
49. In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), 'public interest' is defined thus: "PUBLIC INTEREST (1) A matter of public or general interest "does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected".
[per Cambell C.J., R. v. Bedfordshire, (1855) 24 LJQB 81 (84)].
50. In Black's Law Dictionary (Sixth Edition), 'public interest' is defined as follows:
Public Interest
- Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national government ........"
51. The expression 'litigation' means a legal action including all proceedings therein, initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression 'PIL' means a legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. There is a host of decisions explaining the expression 'PIL' in its wider connotation in the present day context in modern society, a few of which we will refer to in the appropriate part of this judgment.
13. Applying the aforesaid tests to the facts of the present case, this Court owes a duty to see as to whose cause the petitioner is promoting when a petition is filed to pursue a Public Interest Litigation? Whose fundamental or other rights, if any, have been infringed? Who is to be relieved against any wrong and injury caused to him for which he cannot come to this Court ? These are some of the vital questions which are to be answered to test the maintainability of any petition which purports to be in 'Public Interest ' and for a 'Public Cause'.
14. We have noticed in the present case that the petitioner was a Corporator from 2000 to 2008. Earlier when the Corporation had tried to auction the property several times, no objection of any nature was raised by the petitioner and on the contrary, the petitioner participated in passing of such Resolutions. The petitioner is a party to the earlier Resolutions passed by the Corporation, by which it was decided to auction the land in question. In the present petition, he has raised manifold grounds of challenge including the title of the land. Taking into consideration the chequered history of the litigation so far as the land in question is concerned right from the year 1965 and the manner in which the erstwhile lessee Prem Magnesium has tried to create hurdles in the way of the Corporation, speaks volumes about the intention with which the present petition has been filed. We have reached to the conclusion after considering the materials on record that this is not a bonafide public interest litigation, but the same is at the instance of the erstwhile lessee Prem Magnesium, who still has an eye on the land in question.
15. Mr. Joshi, the learned Senior Counsel appearing for the respondent No.6 invited our attention on certain averments made in the affidavit-in-reply filed by his client. Mr. Joshi has drawn our attention to the averments made in paragraph 18 of the reply. We propose to quote the entire paragraph 18, since it will make the position more clear.
"18. I further state that the following events which have taken place after the filing of the present petition make it evident beyond any doubt that the subject petition has been filed at the behest of Prem magnesium:
(a) On 3.2.2012, Prem Magnesium addressed a letter to the Deputy Superintendent of Police (DSP), inter alia, making completely false allegations with regard its purported right over the subject property. In view of this, Shri Sajidbhai Jaka, one of the Directors of the answering respondent, was called by the police and his statement with regard to the correct facts of the case was recorded.
(b) Thereafter, on or about 27.2.2012, Prem Magnesium filed an appeal under Section 203 of the Gujarat Land Revenue Code, 1879 before the Deputy Collector, Bhavnagar challenging the entry no.2975 dated 15.10.2011 made in the property card pertaining to the subject property whereby the name of the respondent no.2 herein was entered in the property card. The said appeal was filed by Prem Magnesium through its advocate Shri Kiran M. Gandhi. In the said appeal, Prem Magnesium falsely alleged, inter alia, that it has not been evicted from the subject property, that the respondent no.2 was not owner of the subject property, that it ought to have been given an opportunity of hearing before the name of the respondent no.2 herein was entered in the property card, etc. The answering respondent requested for and was provided a copy of the said appeal by the respondent no.2. A copy of the said appeal along with the vakalatnama of the said advocate Shri Kiran M. Gandhi is at Annexure I hereto.
(c) Thereafter, Prem Magnesium, through its advocate, issued a notice dated 14.3.2012 upon the respondent no.2 herein and the answering respondent under Section 487 of the Gujarat Provincial Municipal Corporations Act, 1949. In the said notice, Prem Magnesium sought renewal of its lease which expired in 1986 and threatened to file a suit seeking renewal of lease in its favour, challenging the entry no.2975 dated 15.10.2011 made in the property card pertaining to the subject property, challenging the grant of possession of the subject property to the answering respondent herein, etc. In the said notice, it was once again falsely alleged, inter alia, that Prem Magnesium had not been evicted from the subject property and that it is still in possession of the subject property, that the subject property could not have been given on lease to any other person, that the respondent no.2 was bound to renew the lease in favour of Prem Magnesium, etc. It is pertinent to note that, in the said notice, Prem magnesium has clearly mentioned the subject petition and the allegations made therein. A copy of the said notice dated 14.3.2012 is at Annexure J hereto.
(d) I state that, in response to an application filed by the answering respondent under the Right to Information Acjt, 2005, the answering respondent has received from the Forest and Environment Department, Gandhinagar, a copy of an application dated 6.3.2012 filed by the said advocate Shri Kiran M. Gandhi on behalf of the petitioner herein, inter alia, asking the said authority to restrain the respondent no.2 from taking any further steps in regard to the subject property and asking whether it is possible to prove that the subject property falls within the CRZ. A copy of the said application dated 6.3.2012 is at Annexure K hereto.
Likewise, the answering respondent was also provided a copy of the application dated 28/29.3.2012 filed by the said advocate Shri Kiran M. Gandhi on behalf of the petitioner herein seeking information from the Forest and Environment Department, Gandhinagar as to whether the subject property falls withing the CRZ or not and with regard to the legend describing the subject property in the ISRO map. A copy of the said application dated 28/29.3.2012 is at Annexure L hereto. I state and submit that it is clear from the aforesaid that Prem Magnesium and the petitioner herein have a common advocate which clearly established that the petitioner herein is acting at the behest of Prem Magnesium.
(e) The nexus between the petitioner and Prem Magnesium is further established from the fact that, sometime in April 2012, Prem Magnesium filed a completely false and frivolous suit, being Regular Civil Suit No.124 of 2012, in the Court of the Principal Civil Judge, Bhavnagar against the respondent no.2 and the answering respondent seeking, inter alia, an order directing the respondent no.2 to renew the lease in favour of Prem Magnesium and to declare the lease executed in favour of the answering respondent herein to be null and void. In the said suit, the subject petition was referred to by Prem Magnesium. Copies of the plaint and application for interim injunction filed therein are at page 469 and page 482 of the petition respectively as annexures to the respondent no.2's affidavit dated 29.8.2012. The said application for interim injunction has subsequently been rejected by the trial court vide its order dated 17.8.2012, copy of which is at page 492 of the petitioner as an annexure to the respondent no.2's affidavit dated 29.8.2012. Moreover, thereafter, on 12.5.2012, Prem Magnesium gave a false and frivolous public notice in the 'Saurashtra Samachar' newspaper, making various allegations, including allegations which form the basis of the subject petition, and also referring to the subject petition. A copy of the said public notice dated 12.5.2012 is at Annexure M hereto.
(f) One more glaring fact, indicating that the subject petition is filed at the behest of Prem magnesium, is that it has been noticed by me and/or the employees of the answering respondent that a person from Prem Magnesium has remained present in this Hon'ble Court on more than occasion when the subject petition was listed. I reiterate that the aforesaid make it abundantly clear that the subject petition has been filed at the behest of Prem Magnesium in order to further the private interest of Prem Magnesium and is therefore not a genuine public interest ligation and is therefore required to be rejected on this ground. I state that it is also established from the aforesaid and other facts that Prem Magnesium is filing multiple proceedings before various authorities with the completely mala fide and illegal intention of usurping the subject property by keeping it embroiled in controversy."
16. After going through such averments made on oath which have not been denied, we are far more convinced and our doubt about the genuineness of this public interest litigation gets further reinforced that the petitioner is just a name lender. We have no doubt in our mind that the petition filed by the petitioner is far from being bonafide. He has been set-up by others. He is nothing but a name lender.
Therefore, the question that arises is as to what should be the approach of the Court having realized that the bonafide of the petitioner is doubtful and that he has been set up by persons who are actually interested in the land in question.
17. In this regard, we find that the Supreme Court in the case of T.N. Godavarman Thirumulpad Vs. Union of India, reported in (2006) 5 SCC 28 has given some guidance by observing as under:-
However genuine a cause brought before a court by a public interest litigant may be, the court has to decline its examination at the behest of a person who, in fact, is not a public interest litigant and whose bona fides and credentials are in doubt. In a given exceptional case where bona fides of a public interest litigant are in doubt, the court may still examine the issue having regard to serious nature of the public cause and likely public injury by appointing an Amicus Curiae to assist the court but under no circumstances with the assistance of a doubtful public interest litigant. No trust can be placed by court on a mala fide applicant in public interest litigation. These are basic issues which are required to be satisfied by every public interest litigation.
On perusal of record, we have no doubt that the application filed by Deepak Agarwal is far from bona fide. He has been set up by others. We strongly deprecate the filing of an entirely misconceived and mala fide application in the garb of public interest litigation by Deepak Agarwal. He is nothing but a name lender. .
18. Having taken the view that this petition is not a genuine public interest litigation, we could have stopped here without entering into the merits of the other issues, but since we heard the counsel appearing for the respective parties at length on all the issues, we have thought fit to even examine the other issues on merits.
19. First, we propose to deal with the issue of title over the land in question.
Mr. Raval tried to convince us that Bhavnagar Municipal Corporation could not have passed the Resolution which has been impugned, provided the Corporation is the owner of the land in question, or even possessing any right, title or interest on the land. Mr. Raval also tried to impress upon us that although there is a declaration given by this Court so far as the ownership of the land is concerned, the same should be ignored in view of the decision of the Supreme Court in the case of Bhavnagar Municipality Vs. Union of India, reported in AIR 1990 SC
717. In our opinion, there is no question of now reopening the issue of title having once attained finality with the pronouncement of the judgment and order passed by this Court in F.A No. 713 of 1974. As noted above, F.A No. 713 of 1974 filed by the Bhavnagar Municipality was partly allowed and a declaration has been given that the Bhavnagar Municipality is the owner of the land in question, and further, since the said judgment was not carried further before the higher forum, it has attained finality and, therefore, we should not reopen or examine the issue of title of the land in question in this public interest litigation. So far as the decision of the Supreme Court on which strong reliance has been placed is concerned, it will have no application to the case at hand. It may be true that the issue before the Supreme Court was one with regard to the interpretation of the Huzoor Lekh executed by the then ruler of the Bhavnagar State in the year 1948, and the Supreme Court on such interpretation came to the conclusion that the covenants in the Huzoor Lekh conferred only a right or an authorization to sell the land as representing the Government, but not a vesting of the title itself in the Municipality. We make it clear that the Supreme Court was dealing with a matter in connection with other lands falling within the limits of the Municipality of Bhavnagar city and the District towns. In the matter before the Supreme Court, the subject matter was not the land in question with which we are dealing with and therefore, now at this stage, we cannot take a view relying on the decision of the Supreme Court that the Division Bench of this Court could not have passed a decree in favour of the Bhavnagar Municipality for more than one reason. First, the judgment and decree dated 23rd December, 1982, passed by a Division Bench of this Court in First Appeal No. 713 of 1974 has not been appealed against and it has now been implemented and has attained finality between the parties and secondly, will not be adversely affected by the view taken in a subsequent decision of the Supreme Court, since the rights of the Corporation vis-a-vis the State Government were determined in a duly constituted proceeding. Since such determination has attained finality, a subsequent judgment of the Court taking a contrary view will not affect the rights of Bhavnagar Municipal Corporation. Thus, we reject the first submission of Mr. Raval so far as the title of the land is concerned.
20. Mr. Raval also tried to convince us that the Resolution No.40 passed by the Corporation is illegal as the same is in violation of the provisions as contained in Sections 65 and 80 of the Gujarat Municipalities Act. To appreciate this submission, we may profitably quote Sections 65 and 80 of the Act, 1963 as under:-
"65. Powers of municipality to sell, lease, and contract;-(1) A municipality shall be competent; subject to the restriction contained in sub-section (2), to lease, sell or otherwise transfer any movable or immovable property which may, for the purposes of this Act, have become vested in or been acquired by it; and so far as it is not inconsistent with the provisions and purposes of this Act, to enter into and perform all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes.
(2) In the case of every lease or sale of land under sub-section (1) of section 146 and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market values of which exceeds one lakh of rupees, the previous permission of the State Government is required:
[Provided that in the case of a lease or sale of land under sub-section (1) of section 146 no such permission shall be granted if such land forms a street or part of a street which has been declared to be a public street under section 148.] (3) In the case-
(a) Section by resolution at general meeting requisite to validity of certain contracts:- Of a lease for a period exceeding on year or of a sale or other transfer of immovable property the market value of which docs not exceed on lakh of rupees or contract for purchase of any immovable property;
(b) of every contract which will involve expenditure not covered by a budget grant;
(c) of every contract the performance of which cannot be completed within the official year current at the date of contract;
the sanction of the municipality by a resolution passed at general meeting is required.
(4) Execution of contracts on behalf of Municipality:- In municipality-
(a) every contract under or for any purpose of this Act shall be made on behalf of the municipality by the Chief officer;
(b) no such contract for any purpose which the Chief Officer is not empowered by this Act to carry out without the approval or sanction of some other municipal authority, shall be made by him until or unless such approval or sanction has first of all been duly given.
(c) no contract which will involve on expenditure exceeding one thousand rupees shall be made by the Chief Officer unless otherwise authorized in this behalf by the municipality except with approval or sanction of the committee concerned.
(d) every contract made by the Chief Officer involving an expenditure exceeding five hindered rupees and not exceeding one thousand rupees shall be reported by him, within fifteen days after the same has been made, to the committee concerned;
(e) the foregoing provisions of this section shall apply to every variation or discharge of a contract to the same extent as to an original contract.
5. No contract shall be binding on a municipality unless the requirements of this section have been complied with.
Section 80 "80.
Power to acquire and hold property for the purpose of the Act:- (1) A municipality may acquire and hold property both movable and immovable, whether within or without the limits of the municipal borough.
(2) All property of the nature specified in the clauses to this section, not being specially reserved by the State Government, shall be vested in and belong to the municipality, and shall, together with all other property of whatever nature or kind, which may become vested in the municipality, be under its direction, management and control, and shall be held land applied by it as trustee, subject to the provisions and for the purposes of this Act:-
(a) All public town-walls, gates, markets slaughter-houses, manure and night soil depots.
(b) All public streams, tanks, reservoirs, cisterns, wells, springs, aqueducts, conduits, tunnels, pipes, pumps and other water works; and all bridges; buildings, engines, works materials and things connected with or appertaining to such water works; and also any adjacent land, not being private property, appertaining to any public tank or well.
(c) All public sewers and drains; all sewers, drains, tunnels, culverts, gutters and water-courses in, alongside or under any street, and all works, materials and things appertaining thereto; all dust, dirt, dung, ashes, refuse, animal matter, filth or rubbish of any kind collected by the municipality from the streets, houses, privies, sewers, cesspools or elsewhere.
(d) All public lamps, lamp-posts and apparatus connected therewith, or appertaining thereto.
(e) All lands and public buildings transferred to it by the Government by gift or otherwise, for local public purposes.
(f) All public streets and the pavements, stones and other materials thereof and also all trees, erections, materials, implements and things provided for such streets:
Provided that lands and public building transferred to the municipality by the State Government under clause ¿, shall not, unless otherwise expressly provided in the instrument of transfer, belong by right of ownership to the municipality but shall vest in it subject to the terms and conditions of the transfer, and on the breach of any of the said terms or conditions the lands with all things attached thereto, including all fixtures and structures thereon and the public buildings shall revest in the State Government and it shall be lawful for the State Government to resume possession thereof.
(3) Where any open site or waste, vacant or grazing land vesting in Government has been vested by Government in a municipality whether before or after the commencement of this Act, then it shall be lawful for the State Government to resume at any time such site or land, if it is required by it for any public purpose.
(4) In the event of the resumption of any land, building or site under sub-sections (2) or (3) by the State Government otherwise than only for a breach of a condition on which the same was held by the municipality, the municipality shall be entitled to compensation equal to the value of any improvement of such land, building or site by municipality and such value shall be determined in accordance with the provisions of the Land Acquisition Act, 1894 (I of 1894)"
21. First we would like to clarify that the Bhavnagar Municipality was conferred with the status of a Municipal Corporation in February, 1982. Since then, for all purposes, the provisions of the Bombay Provincial Municipal Corporations Act, 1949 would apply. The State Government itself has made the position very clear vide its letter dated 10th May, 1982, by which it has been conveyed to the Bhavnagar Municipal Corporation that it has the power to dispose of the lands in terms of Section 79 of the Act, 1949, and the Government will have no role to play. Even if we take into consideration the judgment of this Court dated 23rd December, 1982, delivered in F.A No. 713 of 1974 holding that the vesting of the land in question would be subject to the then prevailing statutory provisions and subject to the conditions laid down by Resolution of 1965, it would not make the case of the petitioner any better. Section 80 of the Act, 1963 provides for the power to acquire and hold the property for the purposes of the Act. The proviso to Section 80, clause (2) on which reliance has been placed should be read harmoniously with sub-section
(e) of Section 80(2). In the present case, the land was not transferred in favour of Bhavnagar Municipal Corporation for a local public purpose and therefore, the proviso to Section 80 has no application to the case at hand. Even otherwise the land in question was not subjected to any terms and conditions when it was transferred by a Huzoor Tharav of 19th January, 1948. The judgment of this Court in FA No. 713 of 1974 itself makes it very clear that Bhavnagar Municipal Corporation was the owner of the land from 19th January, 1948, subject to the prevailing statutory provisions and conditions contained in the Resolution of 1965. Even according to the stance of the State Government, there were no terms and conditions of transfer and all that has been said by the State Government is that the land was vested when the Corporation was a Municipality. Thus, in our opinion, there is no merit even in the second submission canvassed on behalf of the petitioner.
22. Mr. Raval also tried to convince us that even if it is believed that the provisions of the Bombay Provincial Municipal Corporations Act, 1949 would apply and not the provisions of the Act, 1963, still the Resolution No.40 is illegal since it is in violation of the provisions of Section 79 of the Act, 1949. For appreciating this submission, we may profitably quote Section 79 of the Act, 1949 as under:-
"79. Provisions governing the disposal of municipal property- With respect to the disposal of property belonging to the Corporation, other than property vesting in the Corporation exclusively ofr the purposes of the Transport Undertaking the following provisions shall have effect, namely:-
a. the Commissioner, in his discretion, dispose of by sale, letting out on hire or otherwise, any movable property belonging to the Corporation not exceeding in value in each instance five hundred rupees or such higher amount as the Corporation may, with approval of the [State] Government, from time to time determine, or grant a lease of any immovable property belonging to the corporation including any right of fishing or of gathering and taking fruit, and the like, for any period not exceeding twelve months at a time:
Provided that, the Commissioner shall report to the Standing Committee every lease of immovable property within fifteen days of the grant thereof unless it is a contract for a monthly tenancy or the annual rent thereof at a rack rent does not exceed three thousand rupees;
(b) with the sanction of the Standing Committee the Commissioner may dispose of by sale, letting out on hire or otherwise any movable property belonging to the Corporation of which the value does not exceed five thousand rupees; and may with the like sanction grant a lease of any immovable property belonging to the Corporation including any such right as aforesaid, for any period exceeding one year or sell or grant a lease in perpetuity of any immovable belonging to the Corporation the value or premium whereof does not exceed fifty thousand rupees or the annual rental whereof does not exceed three thousand rupees;
(c) with the sanction of the Corporation, the Commissioner may lease, sell, let out on hire or otherwise convey any property, movable or immovable belonging to the Corporation;
(d) the consideration for which any immovable property or any right belonging to the Corporation may be sold, leased or otherwise transferred shall not be less than the current market value of such premium, rent or other consideration;
[provided that any such sale, lease or transfer to a member of a Scheduled Castes, Scheduled Tribe or any other backward class specified as such class in an order of President under clause (3) of article 338 of the Constitution of any such sale, lease or transfer to a public charitable trust for the purpose of construction or maintenance of a public hospital may be effected, with the prior sanction of the State Government, for a consideration less than such market value to such extent as the State Government may approve;]
(e) the sanction of the Standing Committee or of the Corporation under clause (b) or clause (c) may be given either generally for any class of cases or specially in any particular case;
(f) the aforesaid provisions of this section and the provisions of the rules shall apply, respectively, to every disposal of property belonging to the Corporation made under or for any purpose of this Act:
Provided,-
(a) no property vesting in the Corporation for the purpose of any specified trust shall be leased, sold or otherwise conveyed in such a manner that the purpose for which it is held will be prejudicially affected..
(b) no property transferred to the Corporation by the Government shall be leased, sold or otherwise conveyed in any manner contrary to the terms of the transfer except with the prior sanction of the appropriate Government;"
23. According to Mr. Raval, the Corporation could not have leased the land in question in favour of the respondent No.6 without the prior sanction of the appropriate Government as laid down in the provisions of Section 79F sub-clause (b). We do not find any merit even in this submission for the simple reason that Section 79 Clause (f) sub-clause (b) of the Act, 1949 will have no application to the case at hand. The proviso to Section 79 Clause (f) would apply only in cases where a property has been vested in the Corporation for the purpose of any specified trust and no property transferred to the Corporation by the Government could be leased, sold or otherwise, except with the prior sanction of the appropriate Government. Thus, Section 79(f)(b) would apply if the land is being leased contrary to the terms of the transfer. In the present case, there were no terms of transfer contained in the Huzoor Tharav dated 19th January, 1948. The Resolution dated 10th August, 1965 also imposes conditions like public auction, permission of Government if the land is of a value higher than Rs. 25 per square meter and land could be given only for the purpose for which it was reserved in the development plan. In such circumstances, it could not be said that the lease executed in favour of the respondent No.6 is contrary to the provisions of Section 79 of the Act, 1949.
24. Mr. Raval submitted that the land was reserved for the purpose of salt farming and is now being given for an industrial purpose and therefore, it could be said that the same has not been given for the purpose for which it was reserved. In this regard, we may only refer to the affidavit filed by the Collector, wherein it has been stated on oath that the land has not been reserved for salt farming and the same is a kharaba land (waste land). The letter of the Collector dated 28th May, 2008, which is at page 86 further states that there are factory plots on survey No. 447/1. Even according to the Bhavnagar Municipal Corporation's development plans for 2001, 2020, 2013, the land has been shown to be in an industrial zone. None of the Revenue records produced by the petitioner indicate that the land is actually reserved for salt farming. All that has been stated is that at the relevant point of time, the land had been used for salt farming. Even letter dated 8th January, 1965 at page 79 does not say that the land is reserved for salt farming. On the contrary, the materials on record would indicate that the land is kharaba (waste land). We do not find merit even in this submission of the petitioner.
25. Mr. Raval also contended that the land is a lake and being a water body the same could not have been leased in favour of the respondent No.6 for an industrial purpose. As observed earlier, the land has been shown as a kharaba land (waste land) in the documents which are on record. Most importantly, a Division Bench of this Court in the case of Shailesh R. Shah Vs. State of Gujarat, reported in 2002 (3) GLR 2295, which was also a public interest litigation, directed that all water bodies in the State under the encroachment should be rejuvenated by removing such encroachment. The Court had further directed that the State Government shall notify all the lakes and ponds as may have been shown in the areas covered by the town planning schemes and the development plans, as also those in the areas not so covered through out the State, in short, all the water bodies in the territory of the State that vest in the State and/or the area development authority of the local bodies, including the Panchayats, in the official gazette within three months from the date of that order. Pursuant to such direction, the Notification dated 10th February, 2005 came to be issued by the Narmada Water Resources Water Supply and Kalpasar Department of the State Government providing a list of all water bodies/lakes in the State of Gujarat. We do not find any reference of the land in question in the said Notification. If the land in question is a water body, then the same would have surely been included as one of the notified water bodies as directed by this Court. On the contrary, it appears that the land is a part of the industrial zone under the development plan.
26. We are also not impressed by the submission of Mr. Raval that the name of the land "Moti Talav" itself would indicate that it is a lake. On one hand the petitioner contends that the land is very close to sea and reserved for salt farming and on the other hand takes a contrary stance that it is a lake.
27. The last submission of Mr. Raval is with regard to the Coastal Regulation Zone. According to Mr. Raval, the land falls in CRZ since a creek passes near it and therefore, no development should be permitted unless specifically allowed by the appropriate authority. To substantiate this submission, Mr. Raval has relied on a Google map to show that a creek passes through the land. Mr. Raval has also relied upon a letter dated 25th January, 2012 of the Forest and Environment Department, State of Gujarat, which states that according to the superimposition done by their representative on the CRZ map submitted by the Space Application Centre, which was prepared on a satellite data of 1989-90, the proposed land is situated within the CRZ area.
28. In our opinion, there is no merit even in this submission of Mr. Raval. The materials on record would indicate that the land is 14KM away from the open sea and 1.65 KM away from the nearest creek. The Corporation has also produced a Google map to fortify such a stance. As indicated earlier, the land is a part of industrial zone under the development plan. The reliance on the letter dated 25th January, 2012 is also quite misplaced because solely on the basis of superimposition done by the petitioner himself on some purported satellite data of 1989-90, we should not reach to the conclusion that the land falls in CRZ. Even the Collector's letter of 8th January, 1965 does not speak of CRZ. It is also the case of the Corporation that CRZ Notification does not prohibit leasing of the property and if at all there is any objection in that regard, it is for the appropriate authority specified in the CRZ Notification to take care of the same. Thus, in our opinion, we do not find any merit even in the last submission of Mr. Raval.
29. We shall now deal with the decisions relied upon by Mr. Raval, the learned Advocate appearing for the petitioner, in support of his submissions.
(i) In Girish Vyas and anr. Vs. State of Maharashtra and ors. reported in AIR 2012 SC 2043, the issue before the Supreme Court was one with regard to the nature and significance of the planning process for a large municipal town area and the role of the Municipal Corporation being a statutory Planning Authority. What was assailed before the Supreme Court was the concurrent judgments and a common order passed by a Division Bench of the Bombay High Court in writ-petitions filed in the nature of a public interest litigation. One of the issues before the Supreme Court was whether the State Government had the power to issue instructions to the Municipal Corporation to act in a particular manner contrary to the development plan sanctioned by the State Government and that too, a number of years after the Municipal Corporation having taken the necessary steps in consonance with the plan. While answering such questions, the Supreme Court in paras 131 and 132, on which strong reliance has been placed by Mr. Raval, observed that the High Court rightly rejected the contention that the rule as to the construction of pleadings should be strictly applied in a public interest litigation and that the materials as contained in the petitions did not justify any further probe. According to the Supreme Court, there was a sufficient foundation in the petition for the further steps the High Court could have taken in the matter. The Supreme Court observed that in matters of public interest, once the attention of the Court is drawn to a particular state of fact and if the Government action is found to be contrary to law or affecting the right of the citizen, the Court is required to intervene.
The Court observed that a public interest litigation is not in the nature of adversarial litigation, but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful.
We are of the opinion that there should not be any dispute or debate so far as the proposition of law explained by the Supreme Court is concerned, but such proposition has no application to the case at hand. This decision of the Supreme Court in no manner helps the petitioner in establishing his case that the Resolution passed by the Bhavnagar Municipal Corporation to allot the land in question on a lease, is not in accordance with law, or is against public interest.
(ii) In Indian Council for Enviro-Legal Action Vs. Union of India and ors. reported in (1996) 5 SCC 281, the Supreme Court decided a public interest litigation filed under Article 32 of the Constitution of India concerning the protection of ecology and for preventing irreversible ecological damage to the coastal areas of the country. The main grievance in the petition was that a Notification dated 19th February, 1991, declaring coastal stretches as Coastal Regulation Zones, which regulated the activities in the said zones, had not been implemented or enforced. This had led to a continued degradation of ecology in the said coastal areas. In such circumstances, the Court observed that with the rapid industrialization taking place, there was an increasing threat to the maintenance of the ecological balance. The primary effort of the Court while dealing with the environmental related issues should be to see that the enforcement agencies, whether it be the State or any other authority, take effective step for the enforcement of the laws. The Court in paragraph 47 issued certain directions to safeguard the environment.
The observations made by the Supreme Court in the said case does not help the petitioner in any manner because in the present case, on the basis of the materials on record, we have come to the conclusion that the land in question is not a part of the Coastal Regulation Zone and the CRZ Notification will have no application. In the present case, there is no material on record to indicate that the purpose for which the land has been allotted by the Corporation will lead to serious environmental issues. Thus, this decision is also not helpful to the client of Mr. Raval, although there cannot be any dispute with regard to the proposition laid by the Supreme Court.
(iii) In Reliance Natural Resources Limited Vs. Reliance Industries Limited, reported in (2010) 7 SCC page 1, the Supreme Court observed that the natural resources are vested with the Government as a matter of trust in the name of the people of India and it is the solemn duty of the State to protect the national interest. The Court further observed that even though exploration, extraction and exploitation of natural resource were within the domain of Governmental functions, the Government had decided to privatize some of its functions and for such reason the constitutional restrictions on the Government would equally apply to the private players in such process. Such a proposition of law as laid down by the Supreme Court has been relied upon by Mr. Raval in support of his submission that in the present case also, the land which has been allotted in favour of the respondent No.6 is a natural resource and it is the duty of the State as well as the Corporation to protect the interest of such natural resources.
There should not be any dispute with the proposition that the natural resources are vested with the Government and it is the duty of the Government to protect the natural resources. However, in the present case, there is nothing to indicate that the land in question has been allotted to a private player contrary to the provisions of law or contrary to the policy of the Corporation and by acting detrimental to the interest of the people the natural resource is likely to be wasted. In our opinion, this decision is also in no manner helpful to the client of Mr. Raval in seeking the relief as prayed for in the petition.
(iv) In Union Territory of Lakshadweep and ors. Vs. Seashells Beach Resort and ors. reported in AIR 2012 SC 2309, the issue before the Supreme Court was whether Lakshadweep Administration was justified in finding fault with the direction issued by the High Court of Kerala on the ground that the original writ-petitioner before the High Court had no licence from the Tourism Department and no clearance from the Coastal Zone Regulatory Authority or the Pollution Control Board to run the resort established by it.
It was submitted before the Supreme Court that the direction which was issued by the High Court amounted to permitting a resort without legal permission and authority and without any check, control or regulation regarding its affair. In such circumstances, the Supreme Court took the view on the facts of the case that the High Court had failed to appreciate that the equitable considerations which were placed for consideration by the owner of the beach resort were wholly misplaced in a situation where the very erection of the building to be used as a resort violated the CRZ requirements or the conditions of land use diversion.
We have already observed earlier while dealing with the decision of the Supreme Court in Indian Council for Enviro-Legal Action (supra) that in the present case, the land is not forming a part of the CRZ, and therefore, the observations of the Supreme Court in the facts of the case will have no application to the case at hand.
(v) In Meghwal Samaj Shiksha Samiti Vs. Lakh Singh and ors. reported in (2011) 11 SCC 800, the Supreme Court in the facts of that case rejected the contention of the appellants that the Civil Suit filed by the villagers for a similar relief was pending, and in view of that, the public interest litigation ought not to have been entertained. The Supreme Court took the view that the mere pendency of a Suit by others would not affect the maintainability of the writ-petition in public interest. This proposition of law has been relied upon by Mr. Raval to meet with the contention of the counsel appearing for the Corporation as well as for the respondent No.6 that two Civil Suits as on today are pending and the Civil Court, after taking into consideration the oral as well as the documentary evidence, which may come on record, would decide all the issues which have been raised by the petitioner in this petition.
In our view, what has been observed in paragraph 6 by the Supreme Court, on which strong reliance has been placed, should not be construed as laying down an absolute proposition of law, but should be read in context of the facts in which such observations were made. It is now well settled that a judgment is a precedent for what it decides and not what may appear to logically flow from it. The Court should not place reliance on the decision without discussing as to how the factual situation fits in with the facts situation of the decision on which reliance is placed. Each case depends upon its fact and a close similarity between one case and the another is not enough because even a single significant detail may alter the entire aspect.
30. At this stage, it may not be out of place to mention that the Supreme Court, in an earlier decision in the case of Santosh Sood Vs. Gajendra Singh and ors.
reported in AIR 2010 SC 593, which does not appear to have been taken into consideration in the case of Meghwal Samaj Shiksha Samiti (supra), has taken the view that if a Civil Suit was pending which may or may not be frivolous, ordinarily the High Court should not entertain a public interest litigation. If the Court finds that the Civil Court was not proceeding with the matter as expeditiously as it should have, then appropriate directions should be issued in that behalf. The Court proceeded further to observe that it was trite that save and except cogent reasons, the High Court, in a public interest litigation, would not interfere with the due process of law.
Thus, in our opinion, none of the decisions which have been relied upon by Mr. Raval in support of his submissions helps his client in any manner.
31. Mrs. Manisha Lavkumar Shah, the learned counsel appearing for the Municipal Corporation is right in submitting that the decision of her client to allot the land on lease basis in favour of the respondent No.6 is an administrative decision and judicial review of the administrative action is limited only to correcting the errors of law or fundamental procedural requirements, which may lead to manifest injustice. The Court does not exercise the powers of an Appellate Court in exercise of its powers of judicial review. The scope of judicial review is limited to the decision making process and not to the decision itself.
32. Thus, in the overall view of the matter, we hold that this petition should fail not only on the ground that the same is not a genuine and bonafide public interest litigation, but even on merits of the other issues raised in this petition. The petition being devoid of any merit, is accordingly rejected. However, in the facts and circumstances of the case, there shall be no order as to costs. Interim relief, if any, stands vacated forthwith.
33. Before parting with this matter, we would like to clarify that we are conscious of the fact that as on today, there are two Civil Suits pending before the Civil Judge, Bhavnagar with respect to the land in question, one being Regular Civil Suit No. 124 of 2009 filed by M/s. Prem Magnesium and the other being Regular Civil Suit No. 364 of 2011 filed in a representative capacity. We make it clear that the concerned Civil Court of Bhavnagar shall decide both the Suits on its own merit based on oral as well as documentary evidences that may be led by the respective parties, in accordance with law, without being in any manner influenced by any of the observations made by us in this judgment. We direct that the Court concerned shall give top priority to the hearing of both the Civil Suits and dispose them of latest by 31st July, 2014.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 69 of 69