IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 187 of 2012 With CIVIL APPLICATION No. 10028 of 2012 In SECOND APPEAL No. 187 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH sd/ =========================================
========================================= THE STATE OF GUJARAT & 1 Appellant(s) Versus THE CHIEF OFFICER Defendant(s) ========================================= Appearance :
MS. KABIR HATHI ASST. GOVERNMENT PLEADER for Appellant(s) : 1 2.
None for Defendant(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
1.0 ADMIT.
Date : 05/09/2012 ORAL JUDGMENT
2.0 Shri Murli Devnani, learned advocate waives service of notice of admission on behalf of respondent no.1 Chief Officer, Porbandar Municipality. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, present Second 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 police chawki, which is public purpose and more particularly, when the Collector passed an order to allot the said land for construction of police chawki ?
3.1. That the respondent plaintiff Porbandar Municipality through its Chief Officer instituted Regular Civil Suit No. 276 of 1986 in the Court of learned Civil Judge(S.D.), Porbandar against the State of Gujarat and the Deputy Executive Engineer, R & B Department, Porbandar for declaration and permanent and mandatory injunction to declare that the defendants have no authority to put up the construction of Police Chawki on the disputed land in question which belongs to the municipality and for permanent injunction restraining the defendants from putting up any construction on the land in question and for mandatory injunction to remove the construction which is already made. That the suit was resisted by the defendants by submitting that as such there was already police Chawki on the disputed land in question which was in dilapidated condition and therefore, entire construction was removed and new construction work was started for construction of Police Chawki after obtaining permission from Municipality. It appears that even Collector also passed an order to allot the said land for the purpose of construction of the Police Chawki and it was also submitted that Police Chawki was already constructed on the land in question and therefore, it was requested to dismiss the suit. On the other hand, it was the case on behalf of the plaintiff that Government is not the owner of the disputed land in question and therefore, they have no right to put up the construction on the land and the Collector has no jurisdiction to allot the land in question for construction of the Police Chawki and that the Government has encroached upon the land and have illegally put up the construction of the Police Chawki.
3.2. That the learned trial Court by judgment and decree dated 29.6.2002 partly decreed the suit and declaring that the defendants have encroached upon the land of the plaintiff and have made construction illegally. However, the learned trial Court did not grant the decree of permanent injunction and / or mandatory injunction and directed the defendants to approach the Municipality for getting the construction regularize by making necessary application.
3.3. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (S.D), Porbandar dated 29.6.2002, the appellantsoriginal defendants preferred Regular Civil Appeal No. 24 of 2002 before the learned District Court, Jamnagar 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.
3.4. Feeling aggrieved and dissatisfied with the impugned judgment and order/ decree passed by both the Courts below, the appellants hereinoriginal defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
4.0 Having heard the learned advocates for the respective parties and considering the fact that the dispute is between two State Authority as such considering the decision of the Hon'ble Supreme Court 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. Even otherwise, considering the fact that the suit land in question has been used by the State for construction of Police Chawki which is a public purpose and there was already existing police chawki on the disputed land in question which was in dilapidated condition and therefore, after demolition of the same in the Police Chawki has been constructed and when earlier Collector passed order to allot the land and / or earmarked the land for the purpose of Police Chawki, the impugned judgment and order/ decree passed by both the Courts below cannot be sustained and same deserve to be quashed and set aside. It is to be noted that as such the land belongs to the State Government and it might be that the same might not have been given to the municipalities for administration and management. Considering the aforesaid overall facts and circumstances of the case, the impugned judgment and order/decree passed by both the Courts below cannot be sustained. Even Shri Devnani, learned advocate for the original plaintiff has fairly conceded that as such without approaching High Power Committee the original plaintiff ought not to have instituted the suit against the State, more particularly, when the same has been used for the public purpose.
5.0 In view of the above and for the reasons stated above, present Second Appeal succeeds. The impugned judgment and order dated 15.6.2011 passed by the learned Additional District Judge, Porbandar in Regular Civil Appeal No.24 of 2002 as well as impugned judgment and decree passed by the learned trial Court dated 29.6.2002 passed in Regular Civil Suit No.276 of 1986 are hereby quashed and set aside. No costs.
6.0 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. )