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2. The facts of the case briefly summarized are as follows.

3. The land bearing Survey No.267, admeasuring 19 Acres 3 Gunthas i.e. 92323 sq. yards of village Vadva was owned and possessed by the petitioners. The predecessor-in-title of the petitioners applied to the Deputy Collector, Bhavnagar to get NA permission which was granted by order dated 27.12.1960. As per the relevant provisions of law regarding common plot the predecessor-in-title (ancestor of the petitioners) as erstwhile ruler was required to provide the common plot of 5% of the total area for the purpose of the development. The plots were made including the common plot and it was conveyed by separate conveyance deeds / registered sale deeds executed C/SCA/14843/2005 JUDGMENT on different dates in favour of the individuals. Those individuals then formed the society - Respondent No.3 herein. It is the case of the petitioners that according to the relevant provisions of the Town Planning Act, the are of common plot remained 5% of the total area of the land. Therefore, late Shri Krishnakumarsinhji (the predecessor-in-title and the ancestor of the petitioners) was required to provide the open plot admeasuring 4619 sq. yards and out of this common plot admeasuring 4616 sq. yards was considered as a common plot provided for the plotting made for the Respondent Society. Thereafter at the request made by the predecessor-in-title the construction was permitted in the area / plot admeasuring 8619 sq. yards and the plotting was made in the surplus area admeasuring 3220 sq. yards and the construction was made on 3220 sq. yards of the land as per the order at Annexure-D. However, the remaining land / plot was kept open for which the revenue dues were paid by the petitioners and it was shown throughout in the name of the petitioners and the City Mamlatdar, Bhavnagar issued the certificate dated 5.7.2000. However, when the Collector, Bhavnagar permitted the construction vide order at Annexure-D dated 8.12.1971 as per revised lay out plan the Respondent No.3 raised an objection vide application at Annexure-H dated 24.3.1972. The order passed by Respondent No.3 negatived the conditions and it was not carried further. However, again application came to be C/SCA/14843/2005 JUDGMENT made by Respondent No.3 on 2.11.1992 to the Collector, Bhavnagar for not granting the permission of sale or transact and / or for sanctioning of the plan. The said application was rejected by the Collector, Bhavnagar vide order dated 15.4.1972. Thereafter when the petitioners applied to the Bhavnagar Municipal Corporation ("BMC") for sanction of the building plan, the BMC refused to sanction the plan of the petitioners vide letter dated 12.1.2000 stating that the Collector has directed BMC not to sanction the plan and / or not permit the petitioners to sale or transfer. It is contended that as the Respondent No.3 has failed in its attempt to establish its title to the land in question (open plot) and the petitioners were permitted to put up construction by the Collector, Bhavnagar vide order dated 8.12.1971 at Annexure-D, Regular Civil Suit No.154 of 2000 is made by Respondent No.3 in the court of Civil Judge (SD) Bhavnagar for cancellation of the order of the Collector, Bhavnagar dated 8.12.2007 and the application exh.5 for the interim relief is also filed and no order has been passed. Therefore it is contended that after 20 years from the date of the order dated 8.12.1971 and granting permission the Collector Bhavnagar had served the notice to show cause as to why it should not be cancelled on the ground stated in the show cause notice and challenged in the transfer petition on the grounds stated in the memo of petition and the reply was filed and ultimately the Collector, Bhavnagar by order 12.6.2001 C/SCA/14843/2005 JUDGMENT cancelled the order dated 8.12.1971 holding that the area of the common plot No.59 shall be 8619 sq. yard as per the original order of NA permission dated 27.12.1960. The said order has been challenged by way of appeal before the Secretary (Appeals), Revenue Department who dismissed the same and confirmed the order passed by the Collector, Bhavnagar which is produced at Annexure-O on the ground stated in the memo of petition.

4. Heard learned Counsel Shri A.J.Patel for the petitioners and learned AGP Shri Bharat Vyas for the Respondent State.

5. Learned Counsel Shri A.J.Patel pointedly referred to the questions which have been posed for consideration of the court as stated in detail in memo of petition inter alia whether the action on part of the Collector, Bhavnagar, initially the cancellation of the order dated 8.12.1971 after the lapse of 30 years is arbitrary, discriminatory and in violation of Constitution of India. Further, it has also been contended that the order of cancellation after 30 years and invocation of power is contrary to the pronouncement of the Hon'ble Apex Court and the High Courts regarding exercise of such powers beyond a reasonable period. It is also contended that whether the Respondent No.3 has any right, title, interest over the land - common plot in view of the fact that the claim regarding the plot was already rejected by Collector by order dated 15.4.1972 which has not been challenged and therefore it is required to be examined in C/SCA/14843/2005 JUDGMENT context of the principles of res judicata would apply or not. Learned Counsel Shri Patel referred to the background of the facts and also referred to the papers at length. He submitted that in the year 1960 the order granting NA permission was passed by the Collector. Thereafter by order dated 8.12.1971 at Annexure-D permission has been granted which is sought to be cancelled after a period of 30 years without any justification. Learned Counsel Shri Patel referred to the facts and submitted that the land in question was conveyed by a registered sale deed in favour of individuals and thereafter the society was formed. He emphasized that there is no conveyance in respect of these lands for which the right or the claim is made by Respondent No.3. Learned Counsel Shri Patel submitted that if it were to be transferred or conveyed then at the time of execution of conveyance / sale deed it would have been covered or included. Learned Counsel Shri Patel further submitted that in fact subsequently permission has been granted for development of the plots and have been permitted to be made for part of the land which itself would suggest that it was the land belonging to the petitioners and their family for which the order of the Collector dated 15.4.1972 has been accepted and therefore it would still remain as valid. Learned Counsel Shri Patel therefore submitted that the exercise of power beyond reasonable period i.e. 30 years is arbitrary and illegal. Learned Counsel Shri Patel submitted that even if there C/SCA/14843/2005 JUDGMENT is a nullity it could have been challenged within a reasonable time and the observations which are made are not correct. Learned Counsel Shri Patel submitted that as per prevalent policy or the law 5% of the plot is kept as common plot for which a claim could be made by Respondent No.3. Learned Counsel Shri Patel emphasized that the conveyance is by a separate registered sale deed in favour of each individual and thereafter when they formed the society, the common plot should be 5% of the total area. Learned Counsel Shri Patel submitted that at the most the claim could be made for 5% even though there is no transaction or document with regard to the transfer of any such portion of land. Learned Counsel Shri Patel submitted that still assuming as per the policy or the law 5% was required to be given or kept open then also the remaining portion or the open land could not be claimed by Respondent No.3 as its own merely because it forms large chunk of land belonging to the petitioners and the claim for the whole of the land by Respondent No.3 without any title or the documents is misconceived. Learned Counsel Shri Patel referred to the judgment of the Hon'ble Apex Court reported in AIR 1992 SC 111 -State of Punjab and Ors. v. Gurdev Singh and Ashok Kumar and emphasized the observations made in paragraphs 4, 5, 6 and 8. Learned Counsel Shri Patel also emphasized that the statute of limitation was intended to provide time limit for all suits conceivably. In the same manner C/SCA/14843/2005 JUDGMENT any kind of a claim or a suit could be made within a reasonable period and if the suit could not be maintainable there is no justification for such an order setting aside the permission which has already been granted and on the basis thereof further steps have been taken like in the present case NA permission and subsequent transaction of sale of individual plots. Learned Counsel Shri Patel submitted that not only order dated 15.4.1972 but even order dated 8.12.1971 has not been challenged by anyone before any forum and the order has remained in force throughout. Learned Counsel Shri Patel pointedly referred to the impugned order and submitted that reference to the general clause is of no consequence when the order has remained in force for all such period. Learned Counsel Shri Patel submitted that the petitioner was ready to keep 5% of the land as a common plot as it was originally provided in the law at the relevant time and Respondent No.3 can at the most have a claim towards common plot for 5% of the total land and how can the entire chunk of land could be claimed by Respondent No.3 without any basis or justification.

10. In view of this rival submissions, it is required to be considered whether the present petition can be entertained and the impugned order at Annexure-O can be sustained or not.

11. From the relevant discussions and background of the facts it is evident that originally the land belonged to the predecessor of the petitioners (Krishnakumarsinhji - erstwhile ruler of the State). The NA permission is granted in the year 1960 and thereafter on the basis of permission granted to put up construction by the Collector, Bhavnagar vide order dated 8.12.1971 the plots were marked which have been conveyed by separate registered sale deed in favour of different individuals who have in turn form the Respondent No.3 - Society or the association. Thus, the claim of the individual members of Respondent No.3 would be confined to their respective area conveyed by a registered sale deed. Further, there is no mention in any of the conveyance / sale deed with regard to the common plot as it was a separate transaction with each individual and admittedly Respondent No.3 Society has been formed later on. Again assuming that as per the prevalent law at the relevant time common plot is required to be maintained and therefore 5% of the total area of the land is required to be maintained as a common plot. Admittedly, the petitioners have no objection for leaving 5% of the total area of C/SCA/14843/2005 JUDGMENT the land towards the common plot.

12. Therefore, the real crux of the matter is whether any claim could be made by the Respondent No.3-Society or its members in respect of the land other than which has been conveyed to the members by a registered sale deed individually. Therefore the remaining land which has been left out admittedly belonged to the petitioners as there is no dispute with regard to the title over the land inasmuch as the members of the Respondent No.3-Society also derive their title through the sale deed executed by the petitioners in favour of the members individually by a registered sale deed. Thus at the most the Respondent No.3-Society could make a claim for 5% of the land as a common plot and not the whole of the remaining parcel of the land which admittedly belonged to the petitioners. Normally at the time of conveyance or the sale deed the reference is made to the common plot or how it could be provided for the common plot. Therefore the remaining land which belonged to the predecessor of the petitioners - Krushnakumarsinhji (erstwhile ruler of the State) there is no dispute that he has the right, title and interest over the land in question. Therefore when the entire land belonged to the petitioner or his predecessor as a erstwhile ruler of the State and only part of the land has been conveyed by a registered sale deed in favour of the members of the Respondent No.3- Society which is formed later on it cannot be a subject matter C/SCA/14843/2005 JUDGMENT of dispute or claim by the members of the Respondent No.3- Society and no claim could be made over the remaining land. Merely because the remaining land is adjacent to the common plot or the open land the entire land cannot be labeled or converted into a common plot over a period of time irrespective of the conveyance of the sale deed or the transaction of the sale in favour of the individual members of the Respondent No.3-Society qua each individual plot. Therefore as per the provisions of the Transfer of Property Act the land could be conveyed by execution of a conveyance or the sale deed. Admittedly the sale deeds are executed in favour of each individual member of the Respondent No.3-Society to the extent of the area of the plot only and at the most 5% could be claimed as a common plot and no claim could be made for the remaining area of the land which is lying belonging to the original owner i.e. the petitioners or the predecessor-in-title of the petitioners. The members of the Respondent No.3-Society are the transferees who have been conveyed by execution of conveyance like sale deed in their favour to the extent of the area of the plot who then formed the Respondent No.3-Society and therefore the submissions made that the entire land is a common plot is misconceived.