1. As common question of law and facts arise in both the Second Appeals and as such they arise out of the common judgment and orders passed by both the Courts below they are decided and disposed of by this common judgment and order;
2. In both these appeals, original defendants nos. 3 and 4 (appellants of Second Appeal No. 139/1987) and original defendants nos. 1 and 2 (appellants of Second Appeal No. 42/1987) have challenged the impugned judgment and order passed by the learned appellate Court-learned Assistant Judge, Porbandar dated 16/07/1986 in Regular Civil Appeal No. 16/1984 by which the learned appellate Court has allowed the said appeal preferred by the original plaintiffs by quashing and setting aside the impugned judgment and decree passed by the learned trial Court-learned Civil Judge (Senior Division), Porbandar dated 22/12/1983 in Regular Civil Suit No. 100/1979 by which the learned trial Court dismissed the suit and consequently the learned appellate Court has decreed the suit by declaring that notice dated 22/06/1978 and 24/12/1977 are illegal, against the principles of natural justice and without authority and consequently, original defendants were restrained from carrying out any further proceedings in the aforesaid subject matter.
3. The facts leading to the present Second Appeals in a nutshell are as under;
3.1. It appears that the suit property was let to the Taluka Panchayat for running Primary School. The original land owner instituted Regular Civil Suit No. 20/1974 for recovery of possession and it appears that vide judgment and order dated 17/11/1975 standard rent was fixed at Rs. 85/-. It appears that thereafter Resolution was passed by the District Eduction Committee of the District Panchayat, Junagadh to enhance the rent to Rs. 600/- per month. It appears that the said Resolution No. 67/5 of the District Education Committee of the District Panchayat, Junagadh dated 29/09/1976 was sought to be revised by the Additional Development Commissioner, State of Gujarat in exercise of powers under Section 305 of the Gujarat Panchayat Act and, therefore, the original landlord, the District Education Committee of the District Panchayat, Junagadh as well as the Porbandar Taluka Panchayat were served with the show cause notice and were directed to show cause why Resolution dated 29/09/1976 enhancing the rent should not be taken into suo moto revision and should not be quashed and set aside as the same is illegal and against the interest of the District Panchayat. Thereafter, again the heirs of the original landlord-original plaintiffs were served with the notice dated 22/06/1978 calling upon to make submissions with respect to the show cause notice dated 26/12/1977 and having served with the said notice, original plaintiffs-heirs and legal representatives of the original landlord instituted Regular Civil Suit No. 100/1979 challenging the aforesaid notice dated 22/06/1978 and 24/06/1977 mainly on the ground that the same is in breach of principles of natural justice and the Additional Development Commissioner has no jurisdiction to revise the Resolution of the District Education Committee of the District Panchayat that too under Section 305 of the Gujarat Panchayat Act. The suit was resisted by the original defendants by filing the written statement. The learned trial Court framed the issues at Exh. 39 and thereafter the learned trial Court by impugned judgment and decree dated 22/12/1983 dismissed the said suit by holding that the original plaintiffs have failed to prove that the notices dated 22/06/1978 and 24/12/1977 passed and issued by original defendant no. 2-Additional Development Commissioner are unauthorised, illegal and against the principles of natural justice. The learned trial Court also held that original defendant no. 2 -Additional Development Commissioner has jurisdiction to cancel, vary and/or revise the Resolution/contract entered into between original plaintiffs and original defendants nos. 3 and 4. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dated 22/12/1983 in Regular Civil Suit No. 100/1979 in dismissing the same, the heirs and legal representatives of the original plaintiff preferred Regular Civil Appeal No. 16/1984 before the learned District Court, Porbandar and the learned Assistant Judge, Porbandar by impugned judgment and order dated 16/07/1986 has allowed the said appeal quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and granting declaration and permanent injunction as prayed for. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Assistant Judge, Porbandar dated 16/07/1986 in Regular Civil Suit No. 16/1984 the original defendants nos. 3 and 4 (appellants of Second Appeal No. 139/1987) and original defendants nos. 1 and 2 (appellants of Second Appeal No. 42/1987) have preferred the present Second Appeals under Section 100 of the Code of Civil Procedure.
4. Shri Kabir Hathi, learned AGP appearing on behalf of the appellants in Second Appeal No. 42/1987 and appellants in Second Appeal No. 139/1987 has vehemently submitted that as such the communication dated 24/12/1977 was not an order revising the Resolution passed by the District Education Committee of the District Panchayat, however, it was only show cause notice issued by the Additional Development Commissioner, State of Gujarat calling upon the District Panchayat as well as the original owner/landlord to show-cause why the Resolution passed by the District Education Committee of the District Panchayat revising the rent should not be set aside in exercise of powers under Section 305 of the Gujarat Panchayat Act and, therefore, it is submitted that when by the communication/notice dated 24/12/1977 and thereafter by communication dated 19/06/1978 the heirs of the original plaintiff-landlord were called upon to show cause, the learned learned appellate Court has materially erred in holding the same in breach of principles of natural justice. It is further submitted that even the learned trial Court has materially erred in holding that the Additional Development Commissioner has no jurisdiction and/or authority to revise the Resolution passed by the District Education Committee of the District Panchayat in exercise of powers under Section 305 of the Gujarat Panchayat Act. It is further submitted that in any case even if original plaintiffs was of the opinion that the Additional Development Commissioner has no authority and/or jurisdiction to revise the Resolution and/or Contract between original plaintiffs and the District Education Committee of the District Panchayat, in that case, it was open for them to reply to the show-cause and appear before the Additional Development Commissioner, which could have been considered by the Additional Development Commissioner and, therefore, it is submitted that as such the learned appellate Court has materially erred in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit declaring and granting the declaration that the notice/communication dated 22/06/1978 and 24/12/1977 (treating the same as order) in breach of principles of natural justice. It is further submitted that even otherwise when it was found by the Additional Development Commissioner, State of Gujarat that the Resolution/contract between the the original plaintiffs and District Education Committee of the District Panchayat was not in the interest of the panchayat, it was open for original defendant no. 2-Additional Development Commissioner, State of Gujarat to revise the same in exercise of powers under Section 305 of the Gujarat Panchayat Act and, therefore, it is requested to allow the present Second Appeals. No other submissions have been made by the learned advocate appearing on behalf of the original defendants.
5. Heard Shri Hathi, learned AGP appearing on behalf of original defendant no. 2 (appellant of Second Appeal No. 42/1987) and the appellants of Second Appeal No. 139/1987 and considered the impugned judgment and order passed by the learned appellate Court as well as the judgment and decree passed by the learned trial Court and considered the documentary evidence, which are on record, more particularly, notice dated 22/06/1978 and 24/12/1977, which were challenged in the suit. On considering the communication/notice dated 22/06/1978 as well as 24/12/1977 produced at Exh. 41 and 42, it appears that by the said communication/notice District Panchayat as well as the original landlord Shri Madhavji Devji were called upon to show cause why the Resolution passed by the District Education Committee of the District Panchayat to enhance the rent of primary school should not be revised and/or changed in exercise of powers under Section 305 of the Gujarat Panchayat Act and till then the Resolution passed by the District Education Committee of the District Panchayat was directed to suspended. Thus, by the aforesaid communication, which are in fact the notices, original landlord as well as the District Panchayat were called upon to show cause why the Resolution should not be revised/set aside in exercise of powers under Section 305 of Panchayat Act. This Court fails to appreciate how the aforesaid communications, which are in fact notices calling upon the original landlord and the District Panchayat can be treated as final order and the same could have declared as illegal and in breach of principles of natural justice. Under the circumstances, the learned appellate Court has materially erred in decreeing the suit and granting the declaration that the aforesaid communications (which are considered to be the final order) are illegal and in breach of principles of natural justice and, therefore, the same cannot be sustained.
6. Considering the aforesaid facts and circumstances of the case, the learned appellate Court has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court in dismissing the suit. If it was the case on behalf of the original plaintiff-landlord that the Additional Development Commissioner has no jurisdiction, in that case, also when he was called upon to show cause he ought to have pointed out the same by filing reply and should have appeared before the Additional Development Commissioner rather than instituting the suit challenging the notices treating the same as final order. Even the learned appellate Court has materially erred in considering the communication/notices dated 22/06/1978 and 24/12/1977 as final orders, which are in fact not the final orders but the show cause notices as stated hereinabove.
7. In view of the above, the impugned judgment and order passed by the learned appellate Court cannot be sustained and the same deserves to be quashed and set aside permitting the Additional Development Commissioner to proceed further with the show-notice dated 24/12/1978 and 24/12/1977 in accordance with law and on its own merits and it will be open for the private respondents herein and appellants to submit reply to the same within a period of two months from today, which shall be considered in accordance with law and on its own merits without, in any way, being influenced by the orders passed by the learned trial Court as well as the learned appellate Court.
8. In view of the above, the present Second Appeals succeed. The impugned judgment and order passed by the learned Assistant Judge, Porbandar dated 16/07/1986 in Regular Civil Appeal No. 16/1984 is hereby quashed and set aside and the judgment and decree passed by the learned trial Court-learned Civil Judge (Senior Division), Porbandar in Regular Civil Suit No. 100/1979 dated 22/12/1983 is hereby restored. However, it is observed that it will be open for the Additional Development Commissioner, State of Gujarat to proceed further with the notices dated 22/06/1978 and 24/12/1977 in accordance with law and on its own merits and if the original plaintiffs so choose they can file reply to the same within a period of two months from today and if such reply is filed the same be considered by the Additional Development Commissioner in accordance with law and on its own merits.
9. With this, both the Second Appeals are allowed.
(M.R. SHAH, J.) siji