Meenaben Somabhai Parmar vs The State of Gujarat and 1

S.G. Shah, J.—The appellant herein is the original petitioner in Special Civil Application No. 7155 of 2010. She had preferred such Special Civil Application for quashing and setting-aside the order dated 6.4.2010 by respondent No. 2, namely, Junagadh Municipal Corporation. Since such application was dismissed by the learned Single Judge by judgment and order dated 27.7.2010, the appellant has prayed for quashing and setting-aside both above orders in the present appeal. The result of above two impugned orders is practically to nullify the action and decision of respondents No. 1 and 2 dated 22.5.1993 whereby bid of the appellant was accepted for allotment of plot No. 42 at Survey No. 305 in Zafar Maidan, Gandhigram, Junagadh. Heard learned advocate Mr. Anshin H. Desai, learned advocate for the appellant and Mr. A.N. Shah, learned AGP for respondent No. 1 and Mr. Nirav Sanghvi, learned advocate holding brief of Mr. Ashish M. Dagli, learned counsel for respondent No. 2-Junagadh Municipal Corporation.

In the present appeal, by an order dated 27.4.2011, both impugned orders were stayed, by the Bench comprising of Hon''ble the Chief Justice Mr. S.J. Mukhopadhaya (as he then was) & Hon''ble Mr. Justice J.B. Pardiwala in following terms-

Until further orders, the judgment dated 27.7.2010 passed by the learned Single Judge in Special Civil Application No. 7155 of 2010 and order dated 6.4.2010 passed by second respondent shall remain stayed.

In the same order, it was observed that this appeal may be disposed of at the stage of admission. Therefore, parties were allowed to complete their pleadings and they are heard at length.

As observed herein above, since the impugned orders nullifies the auction dated 22.5.1993, though this is an intra-Court appeal, and since the learned Single Judge has not dealt with and considered the factual details from the year 1993 till the filing of Special Civil Application in the year 2008 before this Court and dismissed the petitioner only on the grounds that (1) there is inordinate delay by the petitioner in filing such petition and (2) that once respondents have exercised the powers u/s. 258 of the Gujarat Municipalities Act, 1963 (''the Act'', for short) such petition is not maintainable; we have no option but to recollect several factual details, if not in detail then atleast in brief.

It would be appropriate to recollect the factual details in chronological order with brief details as under:-

On perusal of above factual events and documents referred herein, what is transpired is quite shocking and disturbing. It is clear and certain that By Resolution No. 196 dated 3.6.1993, appellant was allotted 102.86 sq. yds. land for residential purpose in final plot No. 56 opposite Zafar Maidan in Gandhi gram area of the town, and on payment of full price of such plot being Rs. 21086/- at the relevant time, possession of plot was given to the appellant. Thereby, in due course, respondent has to execute the sale-deed. However, as alleged by the petitioner on oath in her petition itself that as and when she had been to the office of the respondents, Officers of respondents had never given her satisfactory reply and even proper support to finalise the sale by executing the sale-deed in her favour and more precisely the appellant has categorically stated on oath that one Mr. Manoj Pandya, Clerk or Surveyor of respondents was not keen to respond, but in fact demanded an additional amount from the petitioner without there being any order from respondent No. 2 and without any reasonable justification. The record and history narrated herein above categorically proves that though action was not approved by respondent No. 2 in the year 2003, in fact respondent No. 2 had confirmed the auction by charging market price at that relevant point of time and on receiving such additional amount from the concerned persons. The respondents have also executed sale-deeds in favour of some of such allottees.

Therefore, the short issue which remains for consideration in narrow compass is to the effect that whether appellant is entitled to equal treatment by respondents when she had already paid the bid price and when she is ready and willing to pay the escalated price of the year 2003. Probably at some point of time appellant might have either misunderstood the issues or failed to satisfy the demands of the respondents, but ultimately, by her letter dated 11.2.2008, she has also agreed to deposit the difference, but it must be in parity with other allottees and should not be excessive or arbitrary.

With this fact, if we peruse the impugned order dated 6.4.2010, surprisingly instead of stating the factual details or justifiable reason for refusing the allotment of plot to the appellant, unfortunately respondent No. 2 had taken stand, which is in no manner sustainable considering the factual details as narrated herein above.

It is clear that practically appellant is claiming the piece of land only after acceptance of her bid in an auction held by the respondents themselves and, therefore, once her bid was accepted and, thereafter, amount was received by the respondents in the year 1993 and possession was handed over to her in the year 1993, it is not proper for the respondents to say that land cannot be allotted to appellant for the reasons that appellant was residing outside the limit of the Junagadh Municipal Corporation or that appellant''s mother is holding plot in Ivnagar. So far as reason of permanent injunction order dated 13.7.1995 in Municipal Case No. 4 of 1994 is concerned, the fact remains that even after such injunction, respondents have allotted other plots to other allottees and have executed sale-deed in the year 2003. Therefore, on such ground also, rejection of allotment to the appellant cannot sustain.

Thus, the impugned order is vitiated on several grounds in addition to factual grounds stated herein above. It is against the principles of natural justice and most disturbing is it is against the directions of this Court by judgment and order dated 7.7.2008 in Special Civil Application No. 5044 of 2008.

If we peruse such order and judgment dated 7.7.2008, it becomes clear that this Court has categorically quashed and set-aside the initial order dated 28.1.2008, cancelling the allotment of the plot to the appellant, observing that allotment of plot of land and thereby purchase of land in public auction by the petitioner was in the year 1993 and, therefore, cancellation of such allotment after receiving the sale price or returning the sale price is not proper when such order was passed without hearing the appellant and when sale to other allottees was confirmed in the year 2003-2004, therefore, principal amount cannot be returned to the appellant after 15 years when petitioner is willing to pay escalation in the sale price as was done in the case of other similarly situated persons.

Thus, it is clear and certain that the learned Single Judge while passing an order dated 7.7.2008 in Special Civil Application No. 5044 of 2008 has directed the respondents to take care of such issues while dealing with the representation of the appellant. Therefore, action of the respondents in calling upon the information like details of the appellant, date of birth, activity of the father of the appellant etc. are totally misconceived and proves highhandedness, arbitrariness and selectiveness on the part of the officers of respondent No. 2.

It is ignored by both the respondents that practically, after getting the possession of the plot in the year 1993, appellant has developed the property by constructing her house and, therefore, on the ground of estoppel also, it would be improper for the respondents to cancel such allotment after two decades. It is contended by the appellant that for constructing such house, she has utilised all the savings of her father and, therefore, on the ground of equality also, it would be improper for respondents to cancel the auction which was already accepted and implemented and executed by executing the sale-deed.

So far as tossing of amount of sale price deposited by the appellant in the year 1993 by cheques at different time by the respondents is concerned, since the appellant has confirmed that she has not encashed such cheques, it would be improper for the respondents to claim that now they have refunded the amount. However, the fact remains that when appellant has not encashed the previous cheques, respondent had audacity to forward another cheque towards interest on the sale price received by them in the year 1993 with impugned order dated 6.4.2010 i.e. after 17 years, and to save their skin, only because of the observation by the learned Single Judge in judgment dated 7.7.2008 in Special Civil Application No. 5044 of 2008. However, interest @ 9% was calculated on their own and forwarded another cheque for such amount of interest. We fail to understand that under which law, rules or authority, the sale price has been ordered to be refunded with interest, that too after 17 years and after two round of litigation upto this Court.

The only issue which remains is regarding the total price of the plot and authority of the respondent No. 2 to auction the same considering the total price. However, the fact remains that when auction and allotment of plot to several other allottees was already confirmed in past i.e. in the years between 2003-2008, there is no reason to deny such similar treatment to present appellant also.

In background of above facts, circumstances and discussions, if we peruse the impugned judgment and order, it seems that learned Single Judge has simply relied upon the provision of the Gujarat Municipalities Act being Section 258 of the Act, stating that once order u/s. 258 of the Act was passed and such order was not challenged, then nothing can be done. However, unfortunately, there is no clarity on record, more particularly in impugned order dated 6.4.2010 that such order was passed u/s. 258 of the Act. Though it is true that probably in Mun. Case No. 4/1994, the Collector had suspended the resolution No. 196 of the Municipality dated 3.6.1993 by which auction and allotment was confirmed u/s. 258 of the Act. The bare reading of Section 258 makes it clear that the Collector can suspend the execution of any order or resolution by the Municipality, which is causing or is likely to cause injury or annoyance to the public or leading to breach of peace or if it is unlawful. It is not the case of the respondents throughout the proceeding that allotment of such land to the petitioner has in any manner caused or likely to cause injury or annoyance to the public or leading to the breach of peace, whereas so far as illegality in the resolution No. 196 dated 3.6.1993 is concerned, as pleaded by the respondents that since the total price of the land auction is more than Rs. 1 Lac, auction cannot be confirmed without prior permission of the Government. However, the fact remains that auction was not on behest of the appellant or any other allottees, who are now being allotted the land and in whose favour respondents have executed the sale-deeds also. Therefore, when such auction was regularised in favour of several persons, there is, no reason for the respondents to cancel the allotment of the appellant after 17 years by such impugned order dated 6.4.2010.

It is also surprising to note that the person against whom present appellant has alleged in her petition, namely, Manoj Pandya, probably the same Manoj Pandya has filed an affidavit-in-reply in the present appeal. However, he could not dare to answer a single line in defence against the allegations by the appellant in original Civil Application No. 7155 of 2010, whereas affidavit-in-reply filed by respondent No. 2 in previous Special Civil Application No. 5044 of 2008 disclosed in categorical terms in paragraph 7 as under:-

I say that the sale deed which are sought to be relied upon made in the year 2007 in favour of one Shri Dipakbhai N. Sachaniya and Karshanbhai Odedara at Gandhigram (Junagadh) is concerned, I say that at the relevant point of time the Commissioner who is having charge of Collector as well as Administrator of Junagadh Municipal Corporation and therefore the orders were made. I say that as at present the Commissioner, Junagadh Municipal Corporation does not have any such charge and no such orders or sale deed can be made by him.

The bare reading of such statement on oath makes it clear that practically there is bureaucratic difference amongst the officers of the respondents No. 1 and 2 and auction confirmed by one officer is being disturbed by another officer for no valid reason. It seems that practically the officer incharge of respondent No. 2 does not want to forward proper proposal to respondent No. 1 for taking appropriate decision in view of and in continuity of the decision which were being taken for other allottees to whom land was already allotted and sale-deeds were already executed.

Powers of the Collector u/s. 258 of the Act was considered by the Division Bench of this Court in the case of Raghavbhai Arjanbhai Through His Power of Attorney Vasantrai Pragjibhai Patel and Another Vs. Amreli Nagarpalika and Another, wherein after relying upon the judgments of the Supreme Court in Municipal Board, Kannauj Vs. The State of Uttar Pradesh and Others, , Division Bench has observed and held that the resolution of the Board or the order of a duly authorised officer of the Board is not liable to be cancelled or set-aside though execution may be stayed. Therefore, it is certain that powers u/s. 258 are not absolute powers vested in Collector to cancel the resolution of the Municipal Board. Similarly in the case of Vasantilal Ramanlal Kansara Vs. Viramgam Municipality & Ors. reported in 1995(2) GLH 436, this Court has held that even before passing order u/s. 258, the Collector has to give opportunity of hearing to the beneficiary of the resolution and the Municipality. Therefore, when the beneficiary of the resolution by the Municipality is present appellant, any order passed without giving her opportunity of hearing is certainly bad in law.

So far as delay is concerned, since there is no action on the part of the respondents for long, appellant could not be held responsible for delay, more particularly when learned Single Judge in Special Civil Application No. 5044 of 2008 and even respondents have not raised question of limitation.

In view of above facts and circumstances, the appellant is right in claiming equal treatment as is being given to other allottees and hence observation by the learned Single Judge that petitioner''s case cannot be compared with other persons is not sustainable. As discussed herein above, there is inaction on the part of the respondent No. 2 to extend the equal treatment amongst all the allottees and if something is left for some allottees like present appellant, then it is the duty of respondent No. 2 to forward proper proposal to respondent No. 1 and both the respondents are equally responsible and liable to extend equal treatment to all the allottees in accordance with law.

In view of above details, there is clear arbitrariness in the action by the respondents while passing impugned order dated 6.4.2010 which requires to be quashed and set-aside. For the same set of reasons, the impugned judgment dated 27.7.2010 in Special Civil Application No. 7155 of 2012 is also required to be quashed and set-aside. Thereby the appeal deserves to be allowed by following final order. For the foregoing reasons, the Letters Patent Appeal is allowed. The impugned order dated 6.4.2010 of respondent No. 2 and judgment and order dated 27.7.2010 in Special Civil Application No. 7155 of 2010 are quashed and set-aside. Thereby, Special Civil Application No. 7155 of 2010 is allowed. The respondents are directed to complete the formalities of completion of sale in respect of residential plot No. 42 of S. No. 305 situated at Gandhigram, Junagadh in accordance with similarly situated persons and allottees in view of observation made in judgment and order dated 7.7.2008 in Special Civil Application No. 5044 of 2008.