IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1726 of 2005 In SPECIAL CIVIL APPLICATION NO. 2623 of 2005 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA ===========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
YES
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO ================================================================ GUJARAT GYAN PRACHAR SAMITTEE. Appellant(s) Versus THE COLLECTOR & DISTRICT MAGISTRATE & 3 Respondent(s) ================================================================ Appearance:
MR BHARAT T RAO, ADVOCATE for the Appellant(s) No. 1 MS NISHA THAKORE, ASST.GOVERNMENT PLEADER for the Respondent(s) No. 1 - 2 MR NISHANT LALAKIYA, ADVOCATE for the Respondent(s) No. 3 RULE SERVED for the Respondent(s) No. 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and
HONOURABLE MR.JUSTICE S.H.VORA
Date : 26/12/2012 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. Present Letters Patent Appeal, under Clause 15 of the Letters Patent, has been preferred by the appellant – original petitioner, challenging the impugned order dtd.3/3/2005 passed by the learned Single Judge in Special Civil Application No. 2623 of 2005, by which the learned Single Judge has dismissed the said Special Civil Application, along with one another writ petition being Special Civil Application No. 2059 of 2005, filed by the very appellant.
2.00. Facts leading to the present Letters Patent Appeal, in nutshell, are as under :-
2.01. That the land bearing Survey No.462/Paiki admeasuring 2 Acres situated at Rajkot was belonging to one Taiyabali Lukmanji Bharmal. That the said land was agricultural land. Therefore, the original owner Taiyabali Lukmanji applied for Non-Agricultural Use Permission with the Collector, Rajkot and by order dtd.20/4/1961, the Collector granted permission for Non-Agricultural Use for residential purpose for the said land, on the terms and conditions stated in the said order and as per the Lay-out submitted along with the application which came to be sanctioned by the Collector. It appears that one of the conditions and as per the Lay-out Plan, out of the aforesaid 2 Acres of land for which N.A. Use Permission was granted, 1/3rd was to be kept open for public road and even common plot. Therefore, as such land admeasuring 910 sq.mtrs. was kept open as common plot under the sanctioned Lay-out Plan.
2.02. It appears that thereafter land in question was subjected to Town Planning Scheme No.1 (Rajkot) and intention to frame Town Planning Scheme No. 1 was declared on 13/8/1975. That thereafter Draft Scheme came to be sanctioned on 25/2/1977 and Preliminary Town Planning Scheme came to be sanctioned on 25/3/1982 and thereafter final Town Planning Scheme No.1 (Rajkot) came to be sanctioned and implemented on and from 3/9/1994. Under the finalised Town Planning Scheme No. 1 (Rajkot), it appears that land admeasuring 910 sq.mtrs. out of land bearing Survey No.462/Paiki, which as per the Non-Agricultural Use Permission dtd. 20/4/1961, and sanctioned Lay-out plan, was required to be kept open as common plot, was given Original Plot No.56/Paiki and under the finalised Town Planning Scheme No.1 (Rajkot), the same is given Final Plot No.705 admeasuring 873 sq.mtrs. and under the finalised Town Planning Scheme the same is reserved for common plot / public purpose.
2.03. It appears that despite the same, the original owner Taiyabali Lukmanji executed Gift Deed in the year 2000 under which aforesaid 873 sq.mtrs. - Final Plot No.705 of Town Planning Scheme No.1, Rajkot, was given on gift to the appellant trust at the token rate of Rs.1 per sq.mtrs for educational purpose / public purpose. It appears that thereafter the appellant Trust submitted application before the Collector, Rajkot to grant permission to use 1/6th of land bearing Survey No.462/Paiki, Final Plot No. 705, for public purpose, which came to be rejected, however, subsequently the appellant submitted application to reconsider its earlier application and thereafter the Revenue Department, State of Gujarat passed order dtd.7/7/2000 granting permission to the appellant trust to use 1/6th of land out of land bearing Survey No.462/Paiki for public purpose as a special case. It is required to be noted that it is not known under which provision of law, the Revenue Department, State of Gujarat granted such a permission dtd.7/7/2000. That thereafter on the basis of the aforesaid order of the State Government dtd.7/7/2000, the appellant trust submitted an application before the Collector, Rajkot granting it permission to put up the construction of School on 1/6th of the land bearing Final Plot No.705 admeasuring 873 sq.mtrs. It appears that the said application was submitted before the Collector, Rajkot and permission was granted by the Collector as earlier while granting N.A. Permission dtd.20/4/1961, the aforesaid land was required to be kept open as common plot and even as per the sanctioned Lay-out Plan, the same was required to be kept open as common plot.
2.04. That by order dtd.1/1/2001, the Collector, Rajkot granted permission to the appellant Trust permitting the appellant trust to put up the construction for educational purpose on 1/6th of land bearing Final Plot No.705 admeasuring 873 sq.mtrs., on the terms and conditions mentioned in the said order. Under the aforesaid order, the Collector imposed condition that after obtaining necessary permission from the Collector within a period of six months, construction is to be completed within a period of two years and if it is found that there is any breach of any of the conditions and/or breach of the order granting N.A. Use Permission, in that case, the said NA Use Permission shall be cancelled and the land shall be forfeited to the State Government.
2.05. That the appellant accepted the said order and the conditions imposed in the said order dtd.1/1/2001. It appears that in the meantime, and prior thereto, pursuant to the Gift Deed executed by the original owner, the name of the trust was entered into in the revenue record. It appears that thereafter as the appellant trust did not put up any construction and/or started use of the said land for educational purpose within a period of two years and it was found that there is breach of conditions of the permission / order dtd.1/1/2001, the Collector, Rajkot issued show cause notice dtd.22/3/2003 upon the appellant to show cause at to why permission / order dtd.1/1/2001 should not be cancelled / withdrawn and the land in question is not forfeited to the State Government.
2.06. That the appellant trust replied to the said show cause notice vide reply dtd.18/9/2003 submitting that as some people of the locality instituted Regular Civil Suit No. 633 of 2001 on 11/5/2001 for appropriate relief to allot the said land to them for public purpose and an application for interim injunction was filed in the said suit at Ex.5, they could not put up the construction within the stipulated period of two years.
2.07. That considering the reply submitted by the appellant trust, the Collector, Rajkot passed order dtd.26/10/2004, holding the breach of condition and directing to forfeit the land in question to the State Government. Consequently the Collector also directed to cancel the Mutation Entry mutated in favour of the appellant in the Property Card, by taking the said entry into suo-motu revision, by directing to delete the name of the appellant and to mention “common plot” in the said Property Card (in view of the Town Planning Scheme No. 1 (Rajkot).
2.08. Being aggrieved by and dissatisfied with the order passed by the Collector, Rajkot dtd. 8/8/2003, by which the Collector, Rajkot quashed and set aside the order passed by the City Survey Superintendent, mutating the name of the appellant in the Property Card and directing to mention “common plot” in the property card, the appellant trust preferred Revision Application No. 11 of 2003 before the Revisional Authority – Revenue Department (Appeals), State Government.
2.09. Being aggrieved by and dissatisfied with the order passed by the Collector, Rajkot dtd.26/10/2004 in holding breach of condition by the appellant trust and directing to cancel earlier permission / order dtd.1/1/2001 and in directing to forfeit the land to the State Government, appellant trust preferred Revision Application No. 25 of 2004 before the Revisional Authority – Revenue Department (Appeals), State Government.
2.10. It is required to be noted that the aforesaid Revision Application No. 25 of 2004 was preferred by the appellant trust through its Managing Trustee named Mr.Hemangbhai Vasavada and Revision Application No. 11 of 2003 and 1 of 2005 were filed by the very appellant trust, however, through another Managing Trustee named Mr.Bharatbhai N. Patel (through whom the present appeal has been preferred). It appears that there was dispute amongst the trustees at the relevant time and different persons were claiming to be Managing Trustee of the Trust and in possession of the land in question.
2.11. That all the aforesaid three Revision Applications came to be heard together by the Revisional Authority and the Revisional Authority – Secretary (Appeals), Revenue Department (Appeals), State Government by common judgement and order dtd.25/1/2005 dismissed all the aforesaid revision applications confirming the order passed by the Collector, Rajkot dtd.8/9/2003 passed in Revision Application No. 8 of 2002 and order dtd.26/10/2005. It appears that thereafter possession of the land bearing Final Plot No.705 admeasuring 873 sq.mtrs., which has been reserved as common plot / public purpose under the Town Planning Scheme No. 1 (Rajkot), has been taken over by the Government / Collector and the possession of the same has been handed over to the Rajkot Municipal Corporation by order dtd. 16/7/2005 and since then Rajkot Municipal Corporation is in possession of the said plot bearing Final Plot No.705 admeasuring 873 sq.mtrs., Town Planning Scheme No. 1 to be used for public purpose for persons residing in the locality.
2.12. Being aggrieved by and dissatisfied with the common Judgement and Order passed by the Revisional Authority – Secretary (Appeals), Revenue Department, State Government dtd.27/1/2005 passed in Revision Application No. 11 of 2003 and 1 of 2005, appellant herein preferred Special Civil Application Nos. 2623 and 2059 of 2005 before the learned Single Judge.
2.13. That the learned Single Judge by the impugned common order has dismissed the aforesaid two Special Civil Applications.
2.14. Being aggrieved by and dissatisfied with the impugned order passed by the learned Single Judge dtd.2/2/2005 passed in Special Civil Application No. 2623 of 2005, appellant has preferred present Letters Patent Appeal.
It is required to be noted that as such no appeal has been preferred by the appellant against the order passed by the learned Single Judge in Special Civil Application No. 2059 of 2005 and present Letters Patent Appeal has been preferred by the appellant – original petitioner challenging the order passed in Special Civil Application No.2623 of 2005 only.
3.00. Mr.B.T. Rao, learned advocate has appeared on behalf of the appellant and Ms.Nisha Thakore, learned Assistant Government Pleader has appeared on behalf of the respondent Nos.1 and 2 and Mr.Nishant Lalakiya, learned advocate has appeared on behalf of the respondent No.3.
4.00. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned Single Judge has materially erred in dismissing the Special Civil Application confirming the order passed by the Revisional Authority passed in Revision Application Nos. 11 of 2003 and 1 of 2005, confirming the order passed by the Collector, Rajkot, cancelling the earlier permission / order dtd.1/1/2001 and forfeiting the land to the State Government without any compensation.
4.01. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has vehemently submitted that as such the Collector, Rajkot has materially erred in directing to forfeit the land in question to the State Government and holding breach of condition of order dtd.1/1/2001. It is submitted that considering the fact that there was suit filed by some persons of the locality being Civil Suit No. 633 of 2001 wherein application Ex.5 for interim injunction was submitted and some other persons like Mr.Hemang Vasavada, who was earlier one of the trustees, started harassing and therefore, the appellant trust could not put up any construction within two years and could not start use of the same. It is submitted that thereafter as such the dispute amongst the trustees have been resolved and therefore, there is no impediment in putting up any construction of school on 1/6th area of Final Plot No.705 admeasuring 873 sq.mtrs.
4.02. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has further submitted that as such pursuant to the order dtd.1/1/2001 appellant trust submitted Plans before the appropriate authority, inclusive of Rajkot Municipal Corporation and the same were approved / sanctioned and therefore, thereafter the Collector was not justified in cancelling the earlier order dtd.1/1/2001.
4.03. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has further submitted that as such the Collector, Rajkot has no jurisdiction and/or authority to pass the order 26/10/2004 to forfeit the land to the State Government. It is submitted that as such in the Property Card and even as per the Town Planning Scheme, the land in question was in the name of Taiyabali Lukmanji and said Taiyabali Lukmanji gifted the entire land to the appellant and therefore, as such the Collector had no jurisdiction and/or authority to pass the order 26/10/2004. It is submitted that as such earlier permission was granted by the State Government on 7/7/2000 and therefore also the Collector had no jurisdiction and/or authority to pass order 26/10/2004. It is submitted that therefore, the revisional authority as well as the learned Single Judge has erred in confirming the order passed by the Collector, Rajkot dtd. 26/10/2004 forfeiting the land to the State Government.
4.04. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has further submitted that as such this Court should not consider Affidavit-in-reply filed by the Rajkot Municipal Corporation in the present appeal, as the same was not before the learned Single Judge.
In support of his above submission, Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has relied upon the decision of the Hon'ble Supreme Court in the case of Bharat Singh and others Versus State of Haryana and others, reported in (1988) 4 S.C.C. 534.
4.05. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has further submitted that though the Collector, Rajkot in its impugned order has specifically mentioned and observed that he cannot consider the dispute between the trustees, still, the learned Single Judge has considered the dispute between the trustees and has dismissed the Special Civil Application and therefore, as such there are contradictory findings and therefore, the impugned order passed by the learned Single Judge deserves to be quashed and set aside.
4.06. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has further submitted that even otherwise, the Collector was not justified in entering into the dispute with respect to ownership and/or title while considering the Revision Application preferred challenging the order passed by the City Survey Superintendent in mutating the name of the appellant in the Property Card. It is submitted that while considering the aforesaid dispute, the Collector was not required to enter into the dispute with respect to title and/or ownership. It is submitted that, therefore, the Collector has materially erred in directing to quash and set aside the entry in Property Card, which was made in favour of the appellant trust with respect to the land which was given to the appellant by way of gift by the original owner – Taiyabali.
4.07. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has further submitted that as such the Collector has materially erred in initiating the proceedings for breach of conditions on the application of the third party, who was interested in the plot in question.
4.08. Mr.B.T. Rao, learned advocate appearing on behalf of the appellant has further submitted that the land in question was not granted by the State Government / Collector but it was gifted by the original owner Taiyabali to the the appellant Trust and therefore, the Collector had no jurisdiction or authority to pass order to forfeit the land in question.
Making above submissions, it is requested to allow the present Letters Patent Appeal.
5.00. Present Letters Patent Appeal is opposed by Ms.Nisha Thakore, learned Assistant Government Pleader appearing on behalf of the respondent Nos.1 and 2 and Mr.Nishant Lalakiya, learned advocate appearing on behalf of the respondent No.3 – Rajkot Municipal Corporation.
6.01. Ms.Nisha Thakore, learned Assistant Government Pleader appearing on behalf of the respondent Nos.1 and 2 has vehemently submitted that even under the permission / order dtd.1/1/2001 issued by the Collector, Rajkot, the appellant was required to put up construction of school for educational purpose and to use it within a period of two years and as the appellant trust failed to put up construction of school within a period of two years and failed to use it for school, there was breach of condition under order dtd.1/1/2001 and therefore, considering the conditions imposed in the order dtd.1/1/2001, the Collector has rightly passed order to cancel the earlier order dtd.1/1/2001 and to forfeit the land in question to the State Government. It is submitted that order dtd. 26/10/2004 is absolutely in consonance with the permission / order dtd.1/1/2001. It is submitted that as earlier NA Use Permission was granted by the Collector under which the land in question admeasuring 910 (at the relevant time) was required to be kept open for the common plot even as per the Lay-out Plan and therefore, application was considered by the Collector while granting permission / order dtd.1/1/2001 (after obtaining necessary approval from the State Government vide order dtd.7/7/2000) and therefore, as such it was breach of condition of NA Use Permission as well as order dtd.1/1/2001 (by which the Collector granted permission to the appellant to use 1/6th area of the land bearing Final Plot No.705 admeasuring 873 sq.mtrs. for educational purpose), it is only the Collector who had authority to pass order for breach of the condition and therefore, it cannot be said that the order passed by the Collector dtd.26/10/2004 is without jurisdiction. It is submitted that as such the appellant trust itself submitted application before the Collector, Rajkot for granting permission to put up construction on 1/6th area of the plot for educational purpose and therefore, for breach of the condition of the said order dtd.1/1/2001, when the Collector has passed order, it cannot be said that the Collector had no jurisdiction to pass such an order.
6.02. Ms.Nisha Thakore, learned Assistant Government Pleader has further submitted that as such under the original order of grant of N.A. Use Permission dtd.20/4/1961, and as per the sanctioned Plan original owner was required to keep 910 sq.mtrs. of land out of land bearing Survey No.462 Paiki open as common plot and even under the subsequent Town Planning Scheme No.1 (Rajkot), the said land has been converted into Final Plot No.705 admeasuring 873 sq.mtrs., kept reserved as common plot /public purpose, even Taiyabali ought not to have and could not have sold the same and/or could not have gifted to the appellant trust. It is submitted that in any case as successor, the appellant trust could not have used the land in question for any other purpose which the original owner could not have used. It is submitted that therefore, when the land in question has been earmarked and reserved as common plot / public purpose, in the Property Card the same was required to be mentioned for the same purpose and therefore, the Collector had rightly set aside the entry in favour of the appellant trust entered into the Property Card in favour of the appellant trust and has rightly passed order to mention the land in question as common plot in the Property Card with respect to the land in question.
6.03. Ms.Nisha Thakore, learned Assistant Government Pleader has further submitted that even otherwise, thereafter the possession of the land in question has been handed over to the Corporation since July, 2005 to be used for public purpose / common plot for the persons residing in the locality and even in consonance with the Town Planning Scheme No.1 (Rajkot), which has become final and since then the Corporation is in possession of the said land / plot. Therefore, it is requested to dismiss the present Letters Patent Appeal.
7.00. Mr.Nishant Lalakiya, learned advocate appearing on behalf of the Rajkot Municipal Corporation has submitted that as such under the Town Planning Scheme No. 1 (Rajkot), which has become final and which has come into force w.e.f. 3/9/1984, Final Plot No.705 admeasuring 873 sq.mtrs. is reserved as common plot / public purpose for citizens of the locality and even as per the sanctioned Lay-out Plan and therefore, the appellant cannot be permitted to use the land, even 1/6th of the plot in question de-hors the sanctioned Town Planning Scheme. It is submitted that since July, 2005, Corporation is in possession of the plot in question which is to be used by the Corporation for public purpose. Therefore, it is requested to dismiss the present Letters Patent Appeal.
8.00. Heard the learned advocates appearing on behalf of the respective parties at length.
9.00. At the outset, it is required to be noted and as stated hereinabove, one Taiyabali Lukmanji Bharmal was the owner of the land bearing Survey No.462/Paiki admeasuring 2 Acres situated at Rajkot and at the relevant time it was an agricultural land. That in the year 1961, the said Taiyabali submitted an application for Non-Agricultural Use Permission before the Collector, Rajkot with respect to land bearing Survey No.462/Paiki admeasuring 2 Acres along with Lay-out Plan and by order dtd.20/4/1961 the Collector granted permission for Non-Agricultural Use for residential purpose for the said land, on the terms and conditions stated in the said order and as per the Lay-out. That as per the said NA Use Permission and sanctioned Lay-out Plan, 1/3rd area of the land was to be given without compensation for public road etc. As per the sanctioned Lay-out Plan, while granting NA Permission dtd.20/4/1961, land admeasuring 910 sq.mtrs. was to be kept open as common plot for the use of the persons residing in the locality / plot holders.
9.01. That thereafter, the aforesaid land / plot in question was subjected to Town Planning Scheme No.1 (Rajkot) and under the final Town Planning Scheme No. 1 (Rajkot), plot in question (common plot) has been given O.P. No.56/Paiki admeasuring 910 sq.mtrs. and same has been given Final Plot No.705 admeasuring 873 sq.mtrs. and same has been reserved for common plot / public use as per the Lay-out Plan. Thus, under the sanctioned Town Planning Scheme No. 1 (Rajkot) which has become final and which has been implemented w.e.f. 3/9/1984, plot in question bearing Final Plot No.705 admeasuring 873 sq.mtrs. is reserved for common plot / public use.
9.02. It appears that despite the same, the original owner Taiyabali Lukmanji gifted the aforesaid plot to the appellant trust at the token rate of Rs.1 per sq.mtrs. for educational purpose. It appears that thereafter the appellant Trust submitted application before the Collector, Rajkot for granting it permission to use aforesaid Final Plot No. 705 for public purpose for construction of the school, which came to be earlier rejected by the Collector, however, subsequently, application was submitted by the appellant trust to reconsider its earlier decision and to grant it permission to use 1/6th area of the plot for construction of the School and the then Collector, Rajkot sent a proposal to the State Government and by order dtd.7/7/2000, the Revenue Department, State of Gujarat granted permission to the appellant trust to use 1/6th of the plot for construction of the school. Considering the same the Collector, Rajkot passed order dtd.1/1/2001 granting permission to the appellant trust to put up construction on 1/6th of the plot for school on the terms and conditions mentioned in the said order. At this stage it is required to be noted and it is not pointed out under which provision of law the State Government granted permission vide order dtd.7/7/2000, when under the finalised Town Planning Scheme No. 1, Rajkot entire Final Plot No.705 admeasuring 873 sq.mtrs. was kept reserved for common plot / public use. Be that it may, even order dtd.1/1/2001 passed by the Collector, Rajkot granting permission to the appellant to put up construction of school on 1/6th of the Final Plot was on the conditions mentioned in the said order. One of the condition was that the appellant was required to start the construction after obtaining necessary permission from the concerned authorities and get the plan sanctioned within a period of six months and to complete construction and to use the same within a period of two years. One another condition was that if it is found that there is any reach of condition of the NA Use and/or condition of any of the condition of order dtd.1/1/2001, the land shall be forfeited to the State Government without compensation. That the appellant accepted the said order dtd.1/1/2001 along with the conditions mentioned in the said order. It appears that under the earlier order granting NA Use permission dtd.20/4/1961 and as per the sanctioned Lay-out Plan also the plot which was subsequently given Final Plot No.705 was required to be kept as common plot and therefore, there was modification of the NA Permission to that extent, by the Collector who passed an order dtd.1/1/2001. As it was found (may be on the application given by the third party) that there was breach of condition of order dtd.1/1/2001 by not putting up any construction and/or use 1/6th of plot for school within a period of two years, after giving an opportunity to the appellant, the Collector has rightly passed order dtd.26/10/2004 holding breach of the condition by the appellant trust as well as directing to forfeit the land to the State Government, and the same is rightly confirmed by the revisional authority as well as learned Single Judge.
9.03. Now so far as the contention on behalf of the appellant that the appellant could not put up any construction in view of filing of the Regular Civil Suit and application for interim injunction in the said suit at Ex.5, by the persons residing in the locality is concerned, it appears that application Ex.5 was rejected by the concerned Civil Court in the month of July, 2001 and even appeal preferred against the same also came to be rejected immediately in the month of July, 2001 itself. Therefore, there was no impediment in the way of the appellant to put up construction. It appears that in view of the inter-se dispute amongst the trustees, the appellant could not start the construction. In any case, there is breach of condition of the permission / order dtd.1/1/2001 in not putting up construction and not to use the land within a period of two years and therefore, as such no illegality has been committed by the Collector 26/10/2004 which is rightly confirmed by the revisional authority as well as learned Single Judge.
9.04. Now, so far as the contention on behalf of the appellant that as there was no order for grant of the land in favour of the appellant and the original owner, and therefore, the Collector had no jurisdiction to pass order of resumption of the land is concerned, the aforesaid has no substance. The land is ordered to be resumed / forfeited by the Collector on the ground of breach of condition of the NA Permission and the order dtd.1/1/2001 and as per the conditions mentioned in the said order (which was accepted by the appellant). As the original order of NA Permission was granted by the Collector, Rajkot and even subsequent order permitting the appellant trust to put up construction of school on 1/6th area of the plot was by the Collector on the conditions mentioned in the said permission / order and therefore, the Collector alone had authority and/or jurisdiction to pass order for breach of condition and therefore, it cannot be said that the Collector had no jurisdiction and/or authority to pass the impugned order dtd.26/10/2004.
9.05. Now so far as the contention on behalf of the appellant that the Collector, Rajkot initiated proceedings on the application submitted by the third party, who was interested in the land in question and therefore, the order passed by the Collector be quashed and set aside is concerned, the same cannot be accepted. What is required to be considered is whether there is any breach or not. The Collector may initiate proceedings either suo-motu or on the application submitted by anybody. Who makes the grievance is not that much relevance when the breach of condition has been established and proved.
9.06. It is required to be noted at this stage that under the finalised Town Planning Scheme No. 1 (Rajkot), land in question has been given Final Plot No.705 admeasuring 873 sq.mtrs., and the same is kept under the reservation for common plot as per the Lay-out and to be used for public purpose by the citizens of the locality in question.
9.07. As stated above, under the sanctioned Lay-out Plan and grant of NA Permission vide order dtd.20/4/1961, plot in question was required to be kept open by the original owner – Taiyabali as common plot. Therefore, even original owner – Taiyabali could not have used the said plot for any other purpose other than common plot. When the original owner Taiyabali could not have used the plot in question for the purpose other than common plot, and the appellant as a successor on the basis of the Gift Deed, certainly cannot use the plot in question for the purpose other than common plot, more particularly when under the Final Town Planning Scheme, the plot in question is reserved as common plot. The position of the land / plot in question in the finalised Town Planning Scheme, has been pointed out by the Corporation by filing Affidavit-in-reply, which has not been disputed by the appellant. Even otherwise, it being a public document and the Town Planning Scheme, the appellant could not have disputed the same. The contention on behalf of the appellant that as the same was not before the learned Single Judge and therefore, this Court in the appeal cannot consider the same, also cannot be accepted. As the main Special Civil Application was dismissed by the learned Single Judge ex-parte and without issuing notice to the respondent authorities, there was no occasion for them to file Affidavit-in-reply. Therefore, when in response to the same they have appeared and filed reply in this appeal, this court can consider the same when the copy of the same is given to the appellant and the appellant has been given opportunity to controvert the same. As stated above, the appellant has not filed any counter to the Affidavit-in-reply and has not disputed that the plot in question has been given Final Plot No.705 admeasuring 873 sq.mtrs., under the Town Planning Scheme, and the same is reserved as common plot as per the Lay-out Plan.
9.08. Now, so far as the contention on behalf of the appellant that the Collector could not have set aside the entry in the property Card made by the City Survey Superintendent which was in favour of the appellant by submitting that the Collector has no jurisdiction to enter into the dispute with respect to ownership is concerned, the aforesaid has no substance. It is required to be noted that as such the present Letters Patent Appeal is against the order passed in Special Civil Application No.2623 of 2005 and not challenging the order passed in Special Civil Application No. 2059 of 2005. Even otherwise the Collector, Rajkot while passing order dtd. 8/8/2003 by directing to mention in the Property Card as “common plot” has not entered into the question of ownership. Whatever is mentioned in the sanctioned Town Planning Scheme No. 1 (Rajkot), the same is ordered to be reflected in the Property Card. Therefore, no illegality has been committed by the Collector in directing to mention “common plot” in the Property Card.
9.09. As stated above, the possession of the plot in question, which is reserved as common plot / public purpose in the finalised Town Planning Scheme No. 1 (Rajkot) is with the Corporation since July, 2005 and the same is required to be used for common purpose/use.
10.00. In view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
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(M.R.SHAH, J.)
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(S.H.VORA, J.) rafik