1.0 ADMIT.
2.0 Shri Devnani, learned advocate waives service of notice of admission on behalf of respondent. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, the present appeal is taken up for final hearing today.
3.0 The following substantial questions of law arise in the present Second Appeal.
A. Whether in the facts and circumstances of the case the suit filed by the Porbandar Nagarpalika against the State of Gujarat was maintainable in view of the decision of the Hon'ble Supreme Court in the case of Oil And Natural Gas Commission and Another vs. Collector of Central Excise reported in 1995 Supp (4) SCC 541 & in the case of Mahanagar Telephone Nigam Ltd vs. Chairman, Central Board, Direct Taxes And Another reported in (2004) 6 SCC 431 ?.
B. Whether in the facts and circumstances of the case the municipality could have instituted suit against the State Government for relief sought in the suit ?
C. Whether in the facts and circumstances of the case the learned trial Court has committed error in decreeing the suit restraining the State Government from putting up any construction on the disputed land in question which was for quarters, which is public purpose and more particularly, when the Collector passed an order to allot the said land for construction of police quarters ?
4. . Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants State of Gujarat and others to quash and set aside the impugned judgment and decree dated 29.6.2002 passed by the learned Joint Civil Judge (S.D.), Porbandar passed in Regular Civil Suit No.283 of 1987, by which the learned trial Court has decreed the suit, granting declaration, permanent and mandatory injunction as prayed for as well as impugned judgment and order dated 29.4.2011 passed by the learned Additional District Judge, Porbandar passed in Regular Civil Appeal No. 23 of 2002, by which the learned Appellate Court has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit.
4.1. That the respondent herein original plaintiff Porbandar Municipality through its Chief Officer instituted Regular Civil Suit No.283 of 1987 against the appellants hereinoriginal defendants in the Court of learned Civil Judge (S.D.), Porbandar for declaration, permanent and mandatory injunction. It was the case on behalf of the plaintiff that as per the Government Resolution dated 24.6.1955 all the lands bearing survey numbers and open land are vested in the Porbandar Municipality as mentioned in the Schedule for the benefits of the Porbandar people. It was the case on behalf of the plaintiff that the disputed land in question was required to be used for the public purpose however defendants no.2 and 3 have anchering the horses and made their godown. It was also further held that the possession of the suit land was handed over to defendants no. 3 and 4 and defendant no.4 had applied on 29.8.1987 to allot the same for anchering the horses to make the construction of godown to the plaintiff and they started using the said land and therefore, the plaintiff instituted suit for declaration and permanent and mandatory injunction. The suit was resisted by the defendants by filing written statement by submitting that as such land in question is used for public purpose of stable godown for the police department and even on some portion the residential quarters for the employees of the police department have been constructed. It was also submitted that as such suit at the instance of the plaintiff was not maintainable. That the learned trial Court framed the necessary issues and on appreciation of evidence held that the defendants have no right to put up the construction on the disputed land and consequently decreed the suit by judgment and decree dated 29.6.2002.
4.2. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dismissing the suit, the appellants hereinoriginal defendants preferred Regular Civil Appeal before the learned District Court, Porbandar and the learned Assistant Judge, Porbandar by impugned judgment and order has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit.
4.3. Being aggrieved and dissatisfied with the impugned judgment and order / decree passed by both the Courts below, the appellants herein original defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
5.0. Shri Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the appellants State has vehemently submitted that both the Courts below have materially erred in entertaining the suit filed by the Porbandar Municipality against the appellants State Authorities. It is submitted that as such ad held by the Hon'ble Supreme Court in the case of Oil And Natural Gas Commission and Another vs. Collector of Central Excise reported in 1995 Supp (4) SCC 541 & in the case of Mahanagar Telephone Nigam Ltd vs. Chairman, Central Board, Direct Taxes And Another reported in (2004) 6 SCC 431 and other catena of decisions by submitting that there cannot be any litigation between two State authorities unless the dispute is tried to be first resolved by the High Power Committee and clearance is given by the High Power Committee to initiate proceedings by one State authority against another State authority.
5.1. It is further submitted that even otherwise on merits also the learned trial Court has materially erred in decreeing the suit. It is submitted that both the Courts below have not properly appreciated the fact that as such on the suit land in question residential quarters for Police Department are already constructed and even on some portion of the suit land there is stable godown for the Police Department which is also a public purpose. Therefore, it is submitted that when even the defendants were making use of suit land for public purpose the learned trial Court has materially erred in decreeing the suit granting declaration, permanent injunction and mandatory injunction and the learned Appellate Court has materially erred in confirming the same.
6.0 Shri Devnani, learned advocate for the respondent Porbandar Municipality is not disputing that the suit land in question is being used for the public purpose by the defendants. He is also not disputing that unless and until the dispute is resolved through High Power Committee the Municipality who is also State Authority could not have initiated the proceedings against the another State Authority. Therefore, it is requested to pass appropriate order considering the facts and circumstances of the case.
7.0 Heard the learned advocates for the respective parties at length and considering the impugned judgment and order passed by both the Courts below, it appears that both the Courts below have materially erred in decreeing the suit and granting declaration as well as permanent injunction as well as mandatory injunction in favour of plaintiff Porbandar Municipality.
8.0 At the outset, it is required to be noted that the original plaintiff Porbandar Municipality is also State Authority who has initiated the proceedings / filed the suit against the appellants hereinoriginal defendants who are also State authority. As held by the Hon'ble Supreme Court in the case of in the case of Oil And Natural Gas Commission and Another (supra) and in the case of Mahanagar Telephone Nigam Ltd(supra) without approaching High Power Committee the original plaintiff ought not to have initiated the proceedings against the appellants hereinoriginal defendants and consequently the learned trial Court has materially erred in entertaining the suit for the dispute between two State Authorities.
9.0 Even otherwise on merits also both the Courts below have materially erred in decreeing the suit and granting declaration and permanent and mandatory injunction in favour of the plaintiff and against the defendants. Both the Courts below have not properly appreciated the fact that as such suit land in question is being used by the defendants which can also be said to be a public purpose. On the suit land the residential quarters for Police Department have been constructed and some portion of the suit land is also used for stable godown by the Police Department. The aforesaid can also said to be public purpose. Under the circumstances, the learned trial Court has materially erred in decreeing the suit and the learned Appellate Court materially erred in confirming the same.
10.0 Considering the aforesaid facts and circumstances of the case, it appears to the Court that impugned judgment and order / decree passed by the learned trial Court confirmed by the learned Appellate Court cannot be sustained and same deserves to be quashed and set aside.
11. In view of the above and for the reasons stated above, impugned judgment and decree dated 29.6.2002 passed by the learned Joint Civil Judge (S.D.), Porbandar passed in Regular Civil Suit No.283 of 1987 as well as impugned judgment and order dated 29.4.2011 passed by the learned Additional District Judge, Porbandar passed in Regular Civil Appeal No. 23 of 2002 are hereby quashed and set aside. No costs.
12.0. In view of the order passed in Second Appeal, no order in Civil Application and is accordingly disposed of.
“kaushik”
sd/ ( M. R. Shah, J. )