(Per : HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We have heard Mr.Amit Panchal, learned counsel the appellants assisted by Mr.Ashish Dagli appearing for the appellant and Mr.Deepak Sanchela, learned counsel appearing for respondent no.4 and Ms.Jirga Jhaveri, learned Assistant Government Pleader appearing for respondent no.5.
2. This Letters Patent Appeal has been filed challenging the judgment of the learned Single Judge dated 16.3.2011 passed in Special Civil Application No.16032 of 2010. The appellants are having their shops at Manavadar in the Shopping Centre, constructed by Manavadar Nagarpalika. That the respective petitioners submitted common application on 24/11/2008 to grant land in question which was just behind their respective shops, on lease. It appears that Officer of the Nagarpalika made an endorsement on the said application that after holding necessary inspection of the spot, the said application be placed before General Board of the Manavadar Nagarpalika. It appears that on the very next day, the application of the petitioners came to be granted by the General Board of the Nagarpalika by passing resolution No.45 dated 25/11/2008, though consideration of the said application was not in the Agenda and it was taken for consideration by the Board by order of the President. It appears that by aforesaid resolution No.45, it was decided to grant land in question on lease to the respective petitioners on payment of Jantri Price of the Government and respective petitioners were to put up the construction of the shops at their own costs. It appears that thereafter, lease deeds were executed in favour of the respective petitioners on 05/11/2009 and the respective petitioners paid the amount determined by the Municipality for the same.
It appears that thereafter respondent Nos.1 to 3 challenged the aforesaid resolution No.45 before the Collector, Junagadh in exercise of power under Section 258 of the Gujarat Municipalities Act by submitting that the said resolution is absolutely illegal, arbitrary and against the provisions of the Gujarat Municipalities Act and the said resolution was passed without following due procedure. After giving an opportunity to all concerned, inclusive of the petitioners, by a speaking and reasoned order, the Collector, Junagadh has permanently suspended the resolution No.45 dated 25/11/2008 of General Board of the Manavadar Nagarpalika and directed the petitioners to restore the position which was prior to passing of such a resolution. The Collector, Junagadh also passed an order to hold necessary inquiry against the then Chief Officer for not sending aforesaid resolution to the Competent Authority for its perusal and approval and to implement the said resolution. The writ petition filed by the petitioners has been dismissed.
3. Mr.Amit Panchal, learned counsel appearing for the appellants has urged that the land was allotted by the Nagarpalika to them and lease was granted to them and they have already constructed shops. But no period of lease was mentioned which means that the least was for indefinite period. The Collector has cancelled the lease on the ground that the lease granted for more than 10 years has to be with the approval of the State Government as provided by by section 65 of the Gujarat Municipalities Act, 1963.
4. The learned Single Judge has considered the contentions of the appellant and found that the Municipality has committed an illegality in passing Resolution no.45 by which the land in question was allotted to the petitioners on lease and the Collector has rightly exercised his powers and suspended the Resolution. The order of the Collector could not be faulted with on any ground. Paragraphs 9,10 and 11 of the impugned judgment are extracted below:
"9. Now so far as submission on behalf of the petitioners that even the petitioners are ready and willing for prescribing the lease period for less than 10 years is concerned, it cannot be accepted now. Once it is found that the land in question was granted on lease without prescribing any lease period and when it is quashed and set aside on the ground of breach of section 65 of the Gujarat Municipalities Act, the subsequent prayer of the petitioners to restrict the lease period, cannot be granted. Such a request of the petitioners ought to have been made prior to initiation of any proceedings and at the time of entering into the lease deeds.
10. Now so far as the submission on behalf of learned advocate appearing on behalf of the petitioners that no illegality has been committed by the petitioners and it was Manavadar Nagarpalika, who has passed the resolution and granted land in question on lease in favour of the petitioners and, thereafter, lease deeds were entered into between the petitioners and the Chief Officer of Manavadar Nagarpalika, and, therefore, the Collector ought not to have passed the impugned order, cannot be accepted. It is required to be noted that as such the petitioners are beneficiaries of such illegal action. When the petitioners have taken benefit of such illegal action/resolution, it is not open for the petitioners now to contend that it was Manavadar Nagarpalika, who passed resolution and the petitioners acted only as per the said resolution. At the relevant time, the petitioners ought not to have taken benefit of such illegal action and on the aforesaid ground, the impugned order passed by the Collector is just and proper and is not required to be quashed and set aside. It is to be noted that the interim direction issued by this Court against the Chief officer and subsequently proceedings were initiated against the Chief Officer for not performing his statutory duties of sending the resolution for its approval to the Collector and/or to appropriate authority and in permitting the Manavadar Nagarpalika to act as per the resolution and the Chief Officer is found guilty. It is to be noted that it was duty of the Chief Officer to send the said resolution for its approval and perusal before such resolution is to be implemented. Still it is found that the then Chief Officer did not send resolution No.45 to the appropriate Competent Authority for its approval and perusal and permitted the said resolution to be implemented.
11. Under the circumstances, it cannot be said that the impugned order passed by the Collector, Junagadh in exercise of power u/s.258 of the Gujarat Municipalities Act is in any way illegal, perverse and contrary to the provisions of statue. "
5. Therefore, we do not find any substance in this Appeal and it deserves to be dismissed. Mr.Amit Panchal has urged against the order passed by the Collector, he has an alternative remedy of filing Revision Application and therefore, he may be permitted to withdraw this Appeal as well as the writ petition so that he may approach the Revisional Authority. We are of the opinion that once the writ petition is dismissed on merits and Letters Patent Appeal has been filed, the writ petition cannot be permitted to be withdraw, that too, by the LPA bench. In this view of the matter, we do not find any merits in this Appeal. This Appeal fails and is accordingly dismissed.
(V.M.SAHAI,J) (A.J.DESAI,J) ***vcdarji Top