SURENDRANAGAR - DUDHREJ MUNICIPALITY vs STATE OF GUJARAT & ORS.

Rule. Mr.Tirthraj Pandya, learned Assistant

Government Pleader, waives service of notice of

Rule for respondents Nos.1 and 3. Mr.Devang

Vyas, learned advocate, waives service of notice

of Rule for respondent No.2. Respondent No.4 has

chosen not to appear despite of service of

notice on 05.08.2015. From the pleadings, it

appears that the said respondent is neither an

affected nor interested party to the litigation.

Hence, no fruitful purpose would be served to

issue notice of Rule to respondent No.4. On the

facts and in the circumstances of the case, the

petition has been heard finally, with the

consent of learned counsel for the respective

parties.

By way of this petition under Article 226 of the

Constitution of India, the petitioner

Surendranagar - Dudhrej Municipality ("the

Municipality" for short), has challenged the

order dated 30.01.2014, passed by the Gujarat

Revenue Tribunal ("the GRT" for short), allowing

the review application preferred by respondent

No.2 and the order dated 16.06.2015, of the GRT,

rejecting the revision application of the

Municipality and thereby confirming the orders

passed by the Collector, Surendranagar, dated

18.05.1998 and the City Survey Superintendent

dated 06.09.1996.

The chronological narration of the facts of the

case, as can be garnered from the material on

record, dates back to the pre-independence era,

more particularly to 24.12.1945, on which date

the Political Agent, Eastern Kathiawar Agency,

addressed a letter to the Dewan of the erstwhile

princely State of Wadhwan. The subject matter of

the said communication, which is the bone of

contention in the present petition, is the plot

of Government waste land measuring "6435 square

yards and 3 square feet" (as described in the

letter), now City Survey No.5241, comprising

Ward No.1, admeasuring 4753.58 square meters,

situated in Wadhwan. The Political Agent wrote

to the Dewan that Sheth Ratilal Vardhman Shah,

the predecessor-in-interest of respondent No.2,

had sought permission to purchase the land in

question, which was in the immediate vicinity of

his private residence and the Station Committee

had recommended that the lease be granted if the

plot could not be utilized as a recreation

ground for the State N.T.M. High School due to

various reasons, for which purpose it was

originally intended to be used. The Dewan

replied to the Political Agent vide a letter

dated 02.01.1946, stating that the "Wadhwan

Darbar" (erstwhile ruler) had no objection to

the lease of the plot in question to Sheth

Ratilal Vardhman Shah. Accordingly, a Lease Deed

was executed in respect of the land in question

in the month of January 1947, upon the payment

of an amount of Rs.5,492/- by the predecessor of

respondent No.2. The possession of the land was

duly handed over to him. It is the assertion of

respondent No.2 that the possession of the land

has remained with the said respondent ever since

and a compound wall has also been built around

it. Respondent No.2, therefore, maintains that

the land in question is a private property as

the `Sanad'' by which it was granted, still

stands unchallenged.

In this background, the case of the petitioner

Municipality is that upon the constitution and

establishment of the Municipality, the then

Government of Saurashtra, in exercise of power

under sub-section (1) of Section 50 of the

District Municipal Act, 1901 (Act No.3 of 1901)

("the Act"), issued a Notification dated 8-

15.03.1951, vesting certain properties of the

State of Saurashtra in the petitioner

Municipality. The properties vested in the

Municipality by this Notification are described

in Schedule I of the Notification and include

all public properties. The land in question is

not mentioned in the said Notification. On

02.07.1955, the Government of Saurashtra issued

another Notification, in exercise of power under

sub-section (2) of Section 50 of the Act,

transferring to the Municipality all vacant

plots situated within the limits of the

Municipality which belonged to the Government,

except the plots described in the Schedule. The

land in question was the second item in the

Schedule, described as the "Plot behind the

N.T.M. High School portion between High School

and Sheth Ratilal Vardhman''s Bungalow" and was

specifically excluded from vesting in the

Municipality by the Schedule. It, therefore, did

not vest in the Municipality by this

Notification. On 27.12.1955, the Government of

Saurashtra issued a third Notification, whereby

the first two items in the Schedule of the

second Notification dated 02.07.1955, stood

deleted. This Notification had the effect of

excluding the land in question from the

exemption of vesting in the Municipality. This

is the basis of the claim of the petitioner

Municipality over the land. It appears that the

City Survey record was not compiled and codified

and it was only in the year 1966 that the land

in question came to be surveyed. On 04.03.1970,

an entry was posted in the record by the City

Survey Superintendent, to the effect that the

land in question was of the ownership of the

petitioner Municipality. It is the case of the

petitioner that the Notification dated

27.12.1955 was never challenged by respondent

No.2, whereas it is the case of respondent No.2

that no notice was served upon the predecessor

of respondent No.2 before posting the entry in

the record, as mandated by sub-section (2) of

Section 37 of the Bombay Land Revenue Code,

1879, now the Gujarat Land Revenue Code, 1879

("the Code" for short).

It appears that one Ratubha Waghela filed a

Civil Suit for declaration and permanent

injunction against the Municipality and

respondent No.2, in respect of the land in

question. Respondent No.2 claims knowledge

regarding the events relating to the land in

question through the said Civil Suit and asserts

that the possession of the land always remained

with the predecessor of respondent No.2. On

gaining knowledge regarding the ownership entry

posted in the record through the suit, the

predecessor of respondent No.2 challenged it by

filing an appeal before the Deputy Collector.

The appeal was allowed and the order dated

04.03.1970, was set aside. The case was remanded

to the City Survey Superintendent for fresh

determination, by the order dated 31.07.1995 of

the Deputy Collector.

The City Survey Superintendent, by his order

dated 06.09.1996, held that the land in question

was sold to the predecessor of respondent No.2

by a `Sanad'' in Form-A, on a permanent basis

and the said land is occupied by him. The

Collector, in exercise of suo motu powers under

Section 211 of the Code, took the above order of

the City Survey Superintendent in revision and

issued a show cause notice dated 14.05.1997.

After following due procedure, the Collector, by

his order dated 18.05.1998, confirmed the order

of the City Survey Superintendent and withdrew

the notice.

Aggrieved by this turn of events, the petitioner

Municipality filed an appeal before the GRT,

which was allowed by a judgment dated

11.07.2008. The orders of the Deputy Collector

and City Survey Superintendent were set aside

and the property in question was declared to be

of the ownership of the Government of

Saurashtra, vesting in the petitioner

Municipality. Respondent No.2 did not

immediately challenge this order of the GRD but

did so on 05.09.2013, by filing application for

review of the said order. The application was

allowed by the impugned order dated 30.01.2014

and the original appeal of the petitioner, being

Appeal No.AA/41/1998, was restored to file for

fresh decision. After issuing notices to the

parties, hearing them and examining the material

on record, the GRT rejected the appeal of the

petitioner Municipality by the impugned judgment

and order dated 16.06.2015. Aggrieved by the

above two orders of the GRT, the Municipality is

before this Court.

In the backdrop of the above factual scenario,

the submissions advanced by learned counsel for

the respective parties may be briefly

summarised.

Mr.P.S.Champaneri, learned counsel for the

petitioner Municipality has submitted that the

predecessor of respondent No.2 did not raise any

objection to, or challenge, the Notification

dated 27.12.1955, vesting the land in question

in the Municipality. Similarly, respondent No.2

did not challenge the order dated 04.03.1970,

passed by the City Survey Superintendent,

posting the entry in the record and the said

order became final. It was only during the

pendency of the Civil Suit filed by one of the

Municipal Councillors that respondent No.2

challenged the order dated 04.03.1970 for the

first time, on 03.12.1994.

It is submitted that the Deputy Collector, by

his order dated 31.07.1995, by remanding the

matter to the City Survey Superintendent has

virtually declared that the Notification dated

27.12.1955 of the State of Saurashtra is

invalid, which he could not have done. The City

Survey Superintendent has also ignored the said

Notification and wrongly held in favour of

respondent No.2. It is contended that the Deputy

Collector ought not to have withdrawn the notice

of the suo motu revision. The petitioner

Municipality, therefore, approached the GRT

which, after examining the record, held by the

judgment dated 11.07.2008, that the land in

question vested in the Municipality. It is

submitted that while passing this judgment the

GRT has given cogent reasons, therefore, the GRT

ought not to have allowed the application for

review of the judgment which was filed belatedly

by respondent No.2.

Learned counsel for the Municipality contends

that the power of review could not have been

exercised after a lapse of five years. The

Tribunal has allowed the review application for

reasons that are not in consonance with the

provisions of Section 17 of the Bombay Revenue

Tribunal Act, 1957 ("the Tribunal Act"), hence,

the power of review has been incorrectly

exercised. The grounds for review, as mentioned

in Section 17, are not made out and the GRT

could not have entertained the review

application on the consent of parties which does

not confer jurisdiction when the requirements of

Section 17 of the Tribunal Act are not met. The

GRT is required to record its satisfaction,

which has not been done.

It is further contended that the nature of the

procedural defect in its earlier judgment has

not been disclosed by the GRT, which has

virtually reheard the matter. Therefore, on the

face of it, the impugned order in review suffers

from an erroneous exercise of power.

In support of this submission, learned counsel

for the Municipality has placed reliance upon a

judgment of the Supreme Court in the case of

Kamlesh Verma v. Mayawati and Ors. - 2013(3)

GLH 143 : (2013)8 SCC 320.

It is further contended on behalf of the

Municipality that the earlier order of the GRT

has been set aside by rehearing the matter and

reappreciating the evidence, which is not

permissible in law. The GRT has ignored the

aspect that the Notification vesting the land in

the Municipality was never challenged by

respondent No.2. So long as the said

Notification remains, the findings of the GRT in

its impugned judgment cannot be sustained. The

Notification was issued by a valid exercise of

power and has remained unchallenged by

respondent No.2, who remained silent even after

the entry was posted in the record.

It is further urged on behalf of the

Municipality that there was a family settlement

by respondent No.2 on 04.06.1981, which does not

mention the land in question, which shows that

it has vested in the Municipality. Therefore,

the filing of the appeal against the entry after

a lapse of 40 years is not maintainable.

The petition has been strongly opposed by

Mr.Devang Vyas, learned counsel for respondent

No.2. He has submitted that the present is a

peculiar case where the property in question has

been sold by a perpetual lease after charging

the market price, which was paid by the

predecessor of respondent No.2. The ownership of

the property was, therefore, transferred to

respondent No.2. Learned counsel further submits

that the petitioner has not disclosed the

correct factual scenario to the Court and it is

the respondent No.2 who has appended copies of

the correspondence between the Political Agent

and the Dewan of the erstwhile princely State of

Wadhwan with the affidavit-in-reply. From the

said correspondence and the Lease Deed, it is

clear that the property in question was sold to

the predecessor of respondent No.2 upon the

payment of the market price and he became the

owner thereof. The lease is a perpetual one and

was executed in valid exercise of power and has

never been revoked. It is contended that the

Municipality can have no claim over private

property.

Learned counsel for respondent No.2 further

submits that the property in question was

transferred to respondent No.2 much before the

Notifications referred to in the petition were

issued by the State of Saurashtra. Notification

dated 08.03.1951 mentions only public properties

as vesting in the Municipality. Further, in the

Notification dated 02.07.1955, a specific

exception has been made regarding the property

in question as it belonged to respondent No.2.

It is only in the third Notification dated

27.12.1955, that this exception has been

removed. No notice was issued to respondent No.2

before this Notification was issued, otherwise

the said respondent could have submitted

documents showing that the property belongs to

him. Even when the entry was mutated on

04.03.1970, no notice was issued and respondent

No.2 remained unaware of it until it came to

light in the Civil Suit filed by a third party.

The relevant record of those days has been

transferred to Jaipur and it took some time to

obtain documents and approach the GRT in review.

Learned counsel for respondent No.2 would

further urge that the entry in the revenue

record has been posted by the City Survey

Superintendent without following the mandatory

requirements of sub-section (2) of Section 37 of

the Code, as no inquiry took place and no notice

was issued. The property never belonged to the

State of Saurashtra but was transferred by

respondent No.2 by a valid lease much before the

notification of vesting was issued, therefore,

the entry in question has been incorrectly

posted in the record. The procedure envisaged in

Rule 29 of the Gujarat Land Revenue Rules, 1972,

was never followed, therefore, it cannot be said

that respondent No.2 has filed the appeal

belatedly. The appeal has been filed immediately

upon gaining knowledge that the private property

of respondent No.2 is sought to be usurped by

the Municipality.

It is next contended that the revenue

authorities, after examining the record, have

recorded findings of fact in favour of

respondent No.2. The GRT, while delivering its

judgment dated 11.07.2008, did not have the

correct picture as the relevant documents were

not before it. The power of review, therefore,

has been exercised on legal and valid grounds as

mentioned in Section 17 of the Tribunal Act as

evidence has emerged to show that the property

is of the ownership of respondent No.2, which

goes to the root of the matter.

It is further submitted on behalf of respondent

No.2 that the `Sanad'' has not been challenged by

the petitioner before any competent Court of

law. If the Municipality is desirous of

ascertaining the rights and title of the

property in question, it can file a civil suit

as revenue entries do not confer ownership but

are only made for fiscal purposes.

It is contended that the family partition

mentioned by learned counsel for the

Municipality is not at all relevant and can

never confer ownership rights upon the

Municipality.

That, the Municipality never challenged the

order in review at the relevant point of time

but has now chosen to do so before this Court,

after the appeal was rejected. It is submitted

that the revenue authorities have consistently

recorded concurrent findings of fact in favour

of respondent No.2. The Tribunal has committed

no error in passing the impugned judgments on

the facts and in the circumstances of the case,

upon coming to light of relevant documents

proving the leasehold rights of respondent No.2.

In support of the above submissions, learned

counsel for respondent No.2 has placed reliance

upon the judgment of this Court in Special Civil

Application No.12002 of 2001 dated 30.03.2016,

in the case of Deceased Ratanlal Maganlal

Doodhwala v. Mamlatdar and ALT on the point of

concurrent findings arrived at by the revenue

authorities and confirmed by the GRT. The

relevant paragraphs are reproduced below:

"21. In the view of this Court, the findings arrived at by respondents Nos.1 and 2, as confirmed by the Tribunal, are just and proper on the facts and circumstances of the case and the evidence on record. Moreover, they are supported by the legal position that has followed the deletion of Section 121 of the Town Planning Act. No interference is, therefore, warranted from this Court.

There are concurrent findings of two revenue authorities and the Tribunal against the petitioners and in favour of respondents Nos.3 to 5. The impugned orders suffer from no legal infirmity, irregularity or perversity. None of the authorities passing these orders have exceeded their

jurisdiction in any manner. Full opportunity of hearing has been granted to the petitioners. This Court, therefore, does not consider the challenge advanced by the petitioners to the impugned orders, to be a fruitful one."

To further elaborate this point, reliance has

also been placed upon the judgment dated

21.11.2016, rendered by this Court in Special

Civil Applications Nos.10489/1999, 10497/1999

and 10499/1999 in the case of Devrajbhai

Valjibhai Gada v. State of Gujarat, wherein it

is held as below:

"11. In the instant case, vide the impugned order the Collector has set aside the entries made in the revenue record, which were prima facie found to be in violation of the Section 63 of the Tenancy Act and therefore, directed the Mamlatdar and ALT to initiate proceedings under Section 84C of the said Act. The Collector himself has not exercised the powers under Section 84C of the said Act as sought to be submitted by Mr.Mehta. In the inquiry before the Mamlatdar under Section 84C, the petitioners would have the opportunity of hearing and to produce the material. It is

needless to say that the revenue entries are made only for the fiscal purpose and they themselves do not create any right, title or interest in favour of any party.

In that view of the matter, and there being concurrent findings of facts records by the respondent authorities, the Court is not inclined to interfere with the same. The petition, therefore, is dismissed."

On the point that the Sanad of the land in

question has been issued in valid exercise of

power and was never challenged, learned counsel

for respondent No.2 has relied upon the case of

Govind Murji Patel (Kerai) v. State of Gujarat

- 2007(1) GLR 671, wherein this Court has held

as below:

"6. It is not in dispute that sanad of the land in question was already issued, when the revisional powers were exercised by the authority for the first time in the year 1994. It appears that the sanad came to be issued pursuant to the orders dated 28.2.1985, more particularly in view of the conditions incorporated. It is well settled that if the sanad has been issued in

pursuance to the order passed by the revenue authority for allotment of the land the powers under the Land Revenue Code of revisional jurisdiction cannot be exercised, since the execution of the sanad is an agreement between the purchaser of the land/allottee of the land and the State Government. The reference may be made to the decision of this Court in case of "Patel Raghav Natha v. G.F. Mankodi, Commissioner, Rajkot Division and Others", reported in 1965 GLR, 34 and more particularly the concluding observations made at para 13 as under:

"13. ...Therefore, to my mind, the term included in this agreement can only mean that over and above the conditions which were specifically mentioned in the agreement, other conditions contained in any of the provisions of the Code, which can apply to such a grant, shall also apply. In my view, therefore, Section 211 cannot apply to the agreement, even if it is tried to be so made applicable by this particular condition. If in law there is no jurisdiction under Section 211 to revise an agreement no amount of terms included in a document between the parties can vest in the authority that jurisdiction. Under these circumstances, I find it difficult to accept the submissions made on behalf of the Municipality whereby they have urged that the inclusion of this condition would entitle the Government to revise the agreement itself under its powers, under Section 211. As a

result of this train of discussion and reasoning, it must be held that the Commissioner''s order is without authority and that there was no jurisdiction vested in him to pass an order which goes to nullify the agreement. In my view, the sanad or the agreement passed in this case as a result of the Collector''s order still stands and is binding on both the sides till it is set aside in due course of law. As I have already observed that observed and as was observed in the various decisions discussed above, the right procedure for the Government is to go in a civil suit to set aside that agreement. Till then it stands good and binding."

Therefore, if the matter is considered in light of the above legal position, the exercise of the revisional power by the first authority and its confirmation thereof by the higher authorities can be said as without there being any jurisdiction to exercise the appellate power/revisional power and the proper course for the aggrieved party was to prefer the civil suit."

Similar reliance has been placed upon a judgment

dated 26.08.2016 rendered in Special Civil

Application No.10564 of 1996 in the case of

Dilipkumar B. Pandey v. State of Gujarat &

Ors.

On the settled legal position that revenue

entries are mutated for fiscal purposes and do

not confer title upon the land, learned counsel

for respondent No.2 has relied upon a judgment

of this Court in the case of Rakesh Shivbhagwan

Agrawala v. Talati -cum-Mantri - 2002(2) GLH

322, wherein it is held as below:

"5. This court is not expressing any opinion on the findings of the lower authorities. However, it is well settled that the revenue entries are having the value for fiscal purposes and therefore they are having presumptive value in nature and by mutation entry or cancellation thereof the title of the land is not in any manner affected. If any party is aggrieved by the mutation or cancellation thereof, for the purpose of establishing the title the proper remedy would be competent civil court. In the present case the lower authorities have concurrently found and therefore this court finds no case to interfere in exercise of powers under Art of the Constitution, and if the petitioner is so advised, he may prefer a civil suit for establishing the title in accordance with law. It is needless to clarify that the observations made by the revenue

authorities in the impugned order shall not prejudice the case of either party in appropriate proceedings before appropriate authority."

Mr.Tirthraj Pandya, learned Assistant Government

Pleader, appearing for respondent No.2 has

supported the findings of the revenue

authorities and the impugned judgments of the

GRT.

In the backdrop of the above factual scenario,

this Court has heard learned counsel for the

respective parties at length, perused the

material on record and accorded thoughtful

consideration to the rival submissions.

After hearing the parties, one aspect strikes

the Court at the outset, which is that in the

petition, the petitioner Municipality has not

mentioned at all, the fact that the land in

question has been granted to respondent No.2 on

perpetual lease by the erstwhile ruler of the

former princely State of Wadhwan, by executing a

Lease Deed.

The entire series of correspondence between the

Dewan of Wadhwan and the British Political Agent

regarding the lease as well as the Lease Deed

itself, has never been disclosed by the

petitioner in the petition. It is only in the

affidavit-in-reply that these documents have

surfaced and the entire factual position has

become clear. This aspect gains significance

because it is on the basis of these very

documents that the GRT has exercised the power

of review. The petitioner has, therefore, placed

only selected facts, as convenient to it, before

the Court but not the complete facts. This can

be said to be another form of suppression of

material facts.

It is a fact, not disputed by the petitioner

Municipality, that the land in question was

leased in perpetuity to the predecessor of

respondent No.2 upon payment of the then

prevailing market price, by a Lease Deed

executed in January 1947. The Lease Deed was

executed after correspondence dated 24.02.1945

was addressed by the Political Agent to the

Dewan of Wadhwan State, asking for permission to

execute the Lease Deed in favour of respondent

No.2, as the land in question could not be used

for recreation purposes for N.T.M. High School.

The Dewan replied in the affirmative, by a

letter dated 02.01.1946 and the Lease Deed was

executed. The property in question, therefore,

became the private leasehold property of

respondent No.2 on payment of Rs.5,492/-, as

mentioned in the Lease Deed.

The principal Notification dated 08-15/03/1951

of the Government of Saurashtra regarding the

vesting of properties in the petitioner

Municipality includes only public properties

mentioned in Schedule I. Not a single private

property is mentioned therein. The intention of

the Government of Saurashtra is clear from this

Notification, that it intended only public

properties to vest in the Municipality. The

second Notification dated 02.07.1955 also

furthers this intention and specifically

excludes the land in question from vesting in

the Municipality. It states as below:

"NOW, therefore, in pursuance of sub-section (2) of Section 50 of the said Act, the Government is pleased to transfer to the said Municipality all vacant plots situated within the limits of the said Municipality and belonging to the Government except plots described in the Schedule hereto appended for local public purposes."

The above extract clearly refers to vacant plots

situated within the limits of the said

Municipality and belonging to the Government and

makes an exception for plots described in the

Schedule. The land in question figures at

Sr.No.2 in the Schedule and is specifically

excluded.

It is in the third Notification dated

27.12.1955, that the exemption given in the

Notification dated 02.07.1955 was removed, which

had the effect of vesting the land in question

in the Municipality. It is the specific case of

respondent No.2 that the said respondent was not

issued notice or heard before this Notification

was issued, vesting his private leasehold

property in the petitioner Municipality. The

Municipality heavily relies on this Notification

whereas respondent No.2 relies upon the Lease

Deed executed in its favour, which has not even

been referred to by the petitioner Municipality

in the petition.

It is not disputed that no mutation entry came

to be posted in the revenue record regarding the

Notification dated 27.12.1955 until 04.03.1970,

when the City Survey Inquiry Officer held that

the land in question was of the ownership of the

Municipality. It is the specific case of

respondent No.2 that no notice was ever served

to the said respondent while determining such

ownership, as required under Section 37(2) of

the Code. This aspect has not been disputed

either by learned counsel for the petitioner

Municipality or the learned Assistant Government

Pleader. Neither have produced any material on

record to show that notice was issued to

respondent No.2. In light of this position, the

case of respondent No.2, that it was only during

the proceedings of the Civil Suit filed by a

third party that these issues came to knowledge,

is quite plausible.

Reference may now be made to Section 37 of the

Code which is relevant in this regard and reads

as follows:

"37. All public roads, etc., and all lands which are not the property of others, belong to the [Government]--

(1) All public roads, lanes and paths, the bridges, ditches, dikes, and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water-mark, and of rivers, streams, nallas, lakes, and tanks, and all canals, and water-courses, and all standing and flowing water and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such as may be otherwise persons may be established, in or over the same, and except provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same, or appertaining thereto, the property of [the [Government]], and it shall be lawful for the Collector subject to the orders of the [State Government], to dispose of them in such manner as he may deem fit, or as may be

authorised by general rules sanctioned by [the Government concerned] subject always to the rights of way, and all other rights of the public or of individuals legally subsisting.

Explanation.-In this section "high-water- mark:" means the highest point reached by ordinary spring-tides at any seasons of the year.

(2) Where any property or any right in or over any properties is claimed by or on behalf of [the [Government] or by any person as against [the [Government], it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim.

(3) Any suit instituted in any Civil Court after the expiration of one year from the date of order passed under sub-section (1) or sub-section (2), or, if one or more appeals have been made against such order within the period of limitation then from the date of any order passed by the final appellate authority, as determined according to section 204, shall be dismissed (although limitation has not been set up as a defence) if the suit is brought to set aside such order or if the relief claimed is

inconsistent with such order, provided that in the case of an order under sub-section (2) the plaintiff has had due notice of such order.

(4) Any person shall be deemed to have had due notice of an inquiry or order under this section if notice thereof has been given in accordance with rules made in this behalf by the [State [Government]]" (emphasis supplied)

Sub-section (2) of Section 37 lays down the

requirement of giving notice of the inquiry to

the person who claims the land and only

thereafter to pass an order. In the present

case, there is nothing on record suggesting,

even remotely, that this mandatory requirement

was fulfilled. This aspect assumes significance,

because the property in question has been leased

in perpetuity to respondent No.2, much before

any of the Notifications of the Government of

Saurashtra, including the Notification dated

27.12.1955, were even issued. The Lease Deed

conferred private leasehold rights upon

respondent No.2, therefore, it was imperative to

follow the procedure under Section 37(2) of the

Code before mutating the entry in the record.

When no such procedure has been followed at the

stage of passing the order dated 04.03.1970, it

cannot be said to be improbable that respondent

No.2 remained unaware of the proceedings and the

resultant mutation entry, until this state of

affairs came to light in the Civil Suit filed in

respect of the land in question, by a third

party. It is asserted by respondent No.2 that

the possession of the property remained with the

said respondent throughout, therefore there was

no reason to approach the authorities. Under the

circumstances and in view of the above-mentioned

undisputed facts, the aspect of delay on the

part of respondent No.2 in challenging the

entry, as submitted by learned counsel for the

Municipality, cannot hold good. Nothing to the

contrary has been produced by the Municipality.

The City Survey Superintendent, by his order

dated 06.09.1996, found that the land in

question has been given on lease by a `Sanad'' to

the predecessor of respondent No.2 in the year

1947 and the said respondent is an occupant of

the land, which endorsement was made in the City

Survey record. The Deputy Collector, by his

order dated 18.05.1998, after examining the

facts of the case and the material on record

withdrew the Show Cause Notice dated 14.05.1997

issued by him in exercise of suo-motu powers and

confirmed the above findings of the City Survey

Superintendent.

In the proceedings of the appeal preferred by

the petitioner before the GRT, the relevant

documents, such as the correspondence between

the Political Agent and the Dewan of Wadhwan

State as well as the Lease Deed executed in

favour of respondent No.2, were not produced.

This position is an admitted one. Much reliance

has been placed by learned counsel for the

Municipality on the judgment dated 11.07.2008 of

the GRT, that is now no longer in existence,

wherein it has been found that by the

Notification dated 27.12.1955, the exception was

removed and the land in question vested in the

Municipality.

We may now examine the other contention of the

petitioner Municipality, that the GRT has not

properly exercised the power of review, has not

disclosed what the procedural error was in its

earlier judgment and has not acted in consonance

with Section 17 of the Tribunal Act.

The provisions of Section 17 of the Tribunal Act

are reproduced below:

"17. Review of orders of Tribunal --

(1) The Tribunal may, either on its own motion or on the application of any party interested, and where the State Government is heard, under Section 15 on the application by that Government, review its own decision or order in any case, and pass in reference thereto such order as it thinks just and proper:

Provided that, no such application made by any party shall be entertained, unless the Tribunal is satisfied that there has been the discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of such party or could not be produced by him at the time when its decision was made, or

that there has been some mistake or error apparent on the face of the record, or for any other sufficient reason:

Provided further that, no such decision or order shall be varied or revised, unless notice has been given to the parties interested to appear and be heard in support of such order.

(2) An application for review under sub- section (1) by any party or, as the case may be, by the State Government shall be made within 90 days from the date of decision or order of the Tribunal:

Provided that, in computing the period of limitation, the provisions of the Indian Limitation Act, 1908 (IX OF 1908), applicable to applications for review of a judgment or order of a Civil Court shall, so far as may be, apply to applications for review under this section."

The proviso to Section 17(1) states that one of

the grounds of review is the discovery of new

and important mater or evidence which after the

exercise of due diligence was not within the

knowledge of such party or could not be produced

by him at the time when the decision was taken.

In the present case, the evidence in the form of

documents regarding the correspondence between

the Political Agent and the Dewan of Wadhwan

State as well as the Lease Deed could not be

produced by respondent No.2 when the earlier

judgment was delivered. When the documents could

be procured by respondent No.2, the application

for review was moved.

By the impugned order dated 30.01.2014, the GRT,

after issuing notice to the parties and hearing

them, found that certain relevant documents were

not brought to its notice as per the record,

therefore, it found a fit case for the exercise

of jurisdiction under Section 17 of the Tribunal

Act. It has been contended on behalf of the

Municipality that the GRT has not recorded its

`satisfaction'' that there has been a discovery

of new and important evidence. This contention

of the Municipality appears to be too literal in

nature. The very order of the GRT has been

passed on the basis of its satisfaction that

certain relevant evidence was not on record when

its earlier order was passed. In any event, even

after the passing of the order dated 30.01.2014

by the GRT, restoring the appeal to file in

exercise of review jurisdiction, the petitioner

Municipality did not chose to challenge the

judgment but participated in the appeal

proceedings. It is only when the Municipality

was unsuccessful in the appeal that it is

questioning the exercise of the power of review

by the GRT before this Court, after acquiescing

to the said judgment.

In Kamlesh Verma v. Mayawati and Ors. (supra),

relied upon by learned counsel for the

petitioner Municipality, the Supreme Court has

reiterated the settled legal principles

pertaining to the exercise of review

jurisdiction. One of the principles is the

discovery of new and important matter or

evidence. This is precisely the ground on which

the GRT has exercised the power of review. It is

not disputed that the documents regarding the

correspondence between the Political Agent and

the Dewan of Wadhwan State as well as the Lease

Deed in favour of respondent No.2, were not on

record when the earlier judgment of the GRT

dated 11.07.2008 was rendered. The ground of

discovery of new and important matter and

evidence was, therefore, a valid and relevant

ground for the Tribunal to exercise its

jurisdiction as per the proviso to Section 17(1)

of the Tribunal Act. The objection of delay was

not taken by the Municipality when this order

was passed and the said order was never

challenged, therefore, it can hardly lie in the

mouth of the Municipality to raise this issue at

this stage.

Insofar as the impugned order dated 16.06.2015

of the GRT is concerned, it has been passed

after hearing the rival submissions and

considering the material on record, including

the documents brought on record by respondent

No.2 which were not available at the relevant

point of time. The GRT has meticulously

discussed the said documents and arrived at a

conclusion that the property in question has

been granted by way of a `Sanad'' (reference to

the Lease Deed) in favour of respondent No.2,

which finding has been concurrently recorded by

three authorities as well. It has further found

that the predecessor of respondent No.2 was not

issued notice or heard during the inquiry that

took place before making the entry in the City

Survey record in favour of the Municipality. It

has further been found by the GRT that cogent

grounds for condonation of delay were raised by

respondent No.2 in the appeal before the Deputy

Collector which found favour with the authority.

There is also a finding that the revenue

authorities have found respondent No.2 to be in

possession of the property ever since 1947 and

the said property is of private ownership, as

are the properties surrounding it. The GRT has

found that the authorities below have correctly

assessed and appreciated the evidence and found

that the land in question has been leased in

perpetuity to the predecessor of respondent No.2

and the said respondent is in possession

thereof.

All the above findings of the GRT are in

consonance with the concurrent findings of fact

and evidence on record to the effect that the

property in question has been granted in lease

to respondent No.2, way back in the year 1947

and the said judgment is in possession thereof.

These findings of fact are based on material on

record. The municipality has not produced any

material to the contrary but has tried to avoid

mentioning the relevant facts in the petition.

In the impugned judgment of the GRT, reliance

has been placed on the material on record.

Nowhere has the GRT commented on the validity of

the Notification dated 27.12.1955, as is sought

to be argued on behalf of the Municipality.

Besides the above, there has never been any

challenge to the `Sanad'', in the form of the

Lease Deed, by the Municipality. As per the

settled position of law elaborated in the case

of Govind Murji Patel (Kerai) v. State of

Gujarat (supra), a `Sanad'' issued in valid

exercise of power is binding on the parties

unless and until it is set aside in due course

of law. The `Sanad'' or Lease Deed dated January

1947 in favour of respondent No.2 is still in

existence and was in existence even before the

three Notifications of the State of Saurashtra

dated 15.03.1951, 02.07.1955 and 27.12.1955,

were issued. The Lease Deed has never been

questioned in any legal proceedings by the

Municipality and the perpetual leasehold rights

granted by it to respondent No.2 on the payment

of the market price prevailing at the relevant

point of time, are still in existence. Nothing

to dispute this position has been produced on

record by the Municipality.

The cumulative effect of the above discussion is

that this Court does not find any illegality,

irregularity or perversity in the impugned

orders dated 30.01.2014 and 16.06.2015, passed

by the GRT, so as to warrant interference. The

said orders are a result of a proper and valid

exercise of jurisdiction and are based on cogent

reasons. They deserve to be upheld and are,

accordingly upheld.

As a result, the petition fails and is rejected.

Rule is discharged.

Learned advocate for the petitioner submits that

the judgment be stayed for four weeks. For

reasons recorded in the judgment, the request is

declined.