Ashok Cooperative Housing Society Limited vs State of Gujarat

J.M. Panchal, J.—By means of filing this appeal under Clause 15 of the Letters Patent, the appellant has challenged legality of judgment and order dated August 14, 1997 passed by the learned Single Judge, in Special Civil Application No. 7284/96.

The appellant is a society registered under the provisions of the Gujarat Co.operative Societies Act, 1961. There is a parcel of land bearing Survey No.466 paiki, which was originally granted by erstwhile State of Rajkot to one Patel Bechar Bhavan. The said land was sub-divided into three parts viz. Survey Nos.466/1, 466/2 & 466/3, each admeasuring 28 Acres & 39 Gunthas, 25 Acres & 26 Gunthas and 54 Acres & 25 Gunthas respectively. Part of Survey No.466/2 admeasuring 3 Acres & 30 Gunthas was pot-kharaba. On the death of Patel Bechar Bhavan, lands were mutated in the name of his heirs and the lands were in possession of Patel Khoda Bechar, who by sale deed dated April 6, 1960 sold Survey No.466 paiki, admeasuring 16 Acres & 29 Gunthas to Karsan Nagji and 12 other persons. Karsan Nagji and others by deed dated October 20, 1965 sold land admeasuring 3 Acres & 30 Gunthas of Survey No.466 to the appellant-society. The land purchased by the appellant was included in Town Planning Scheme No. I and on preliminary Town Planning Scheme being introduced, the land was freshly numbered as original Plot No.94 admeasuring 3 Acres & 30 Gunthas. On completion of the Town Planning Scheme, original Plot No.94 was reconstituted into Final Plot No.939, admeasuring 10450 sq. mts. On coming into force of the provisions of the Gujarat Town Planning and Urban Development Act, 1976, proceedings were initiated for mutating the land in the name of the appellant-society in the revenue records. The entry was not certified by Mamlatdar and, therefore, an appeal was filed by the appellant before Deputy Collector, which was rejected by an order dated January 10, 1970. Against the appellate order, revision was preferred before Special Secretary, Revenue Department, which was dismissed by an order dated June 25, 1971. In the meantime, another inquiry was conducted by City Survey Inquiry Officer, Rajkot, who by his order dated January 31, 1973 held that land admeasuring 3 Acres & 30 Gunthas of Survey No. 466 was not cultivable, meaning thereby that the land was pot-kharaba and was in possession of the appellant-society. In appeal, the said order was set aside. Some of the members of the appellant-society individually had applied before Rajkot Municipal Corporation for grant of individual plans and permission to commence construction on the plots allotted to them. Permission as sought for was not granted. Thereafter the Mamlatdar initiated proceedings u/s 61 of the Land Revenue Code calling upon the appellant-society to show cause as to why eviction proceedings should not be initiated, since there was encroachment upon the land in question by the appellant-society. That notice was challenged by the appellant by way of filing Special Civil Application No. 7284/96.

Learned Single Judge by an order dated August 14, 1997 rejected the petition, but clarified that the decision was not rendered regarding title of either of the parties with respect to the disputed land. The order rejecting Special Civil Application No. 7284/96 is the subject matter of challenge in the present appeal.

During the course of hearing of the appeal, learned Counsel for the appellant has produced an order dated April 3, 1999 passed by the City Mamlatdar, Rajkot City in Encroachment Case No.1/96-97 for perusal of the Court. It is ordered to be taken on the record of the case. The order passed by the City Mamlatdar, Rajkot City indicates that the notice which was issued u/s 61 of the Bombay Land Revenue Code, is ultimately ordered to be filed. As the notice which was challenged in Special Civil Application No. 7284/96, is ordered to be filed, we are of the opinion that the present appeal has become infructuous and deserves to be disposed of accordingly. From the impugned judgment, it is evident that the applications submitted by individual members seeking permission to develop the plots, were rejected on the ground that the appellant-society had no title to the land in question. However, when the notice which was issued u/s 61 of the Bombay Land Revenue Code is ordered to be filed, it is needless to say that it will be open to the members to apply for fresh permission and the Corporation will have to consider the applications on merits and in accordance with law.

Subject to observations made hereinabove, the appeal fails and is disposed of having become infructuous. There shall be no orders as to costs.