1. As common question of law and facts arise in these group of petitions, all these petitions are disposed of by this common judgment and order.
1.1. Special Civil Application No. 1878/1994 has been preferred by the petitioner-Kandla Port Trust (hereinafter referred to as the ‘KPT’) for an appropriate writ, order or direction directing the respondents to treat the orders of allotment made by the Collector, Kutch/State Government in favour of the private respondents allotting respective plots out of the land bearing Survey No. 155/1 (new), which is forming part of land bearing (old) Survey No. 227 as cancelled and directing them not to act upon and/or interfere and/or proceed further on the basis of the said orders. It is also further prayed for an appropriate writ, order or direction restraining respondents nos. 1 to 5 from dealing with and/or disposing of the said area of land and/or any area of the land, which is already vested in the KPT in favour of any other person and directing them to carryout necessary survey of the entire land demarcating the land in favour of the petitioner.
1.2. Special Civil Application No. 770/1992 has been preferred by the very petitioner-KPT for an appropriate writ, order or direction directing the respondents to treat the impugned order dated 17/12/1991 at Annexure –G to the petition as cancelled and also to treat the order of the State Government dated 04/03/1991 as cancelled and directing them not to act upon and/or proceed further on the basis of the said order.
1.3. Rest of the Special Civil Applications, being Special Civil Application Nos. 18037/2003; 18049/2003; 18050/2003; 18057/2003 and Special Civil Application No. 1996/2001 have been preferred by the petitioners in whose favour the allotment orders have been passed by the State Government allotting them the land, out of the land bearing Survey No. 155/1, restraining KPT from disturbing their possession.
2. It is the case on behalf of the petitioner-KPT that it is a body corporate constituted under the provisions of the Major Port Trusts Act, 1963. Originally in 1931 A.D. KPT was constructed by the then princely State of Kutch. On 15/08/1947 when Indian Independence Act, 1947 came into force, Kutch became a sovereign State and on 01/08/1948 the Ruler of Kutch executed an instrument of accession ceding his State to the dominion of Indian. Thereafter, on 26/01/1950 when the Constitution came into force, Kutch became ‘Part-C’ State and on 01/04/1950 the Indian Ports Act, 1908 was applied to the Kandla Port by a notification, which was issued on 31/01/1950. On 29/03/1955, the Central Government declared the Kandla Port as a Major Port with effect from 08/04/1955 and the Central Government undertook the project of construction of Major Port of Kandla. On 01/11/1956, Kutch, which was a ‘Part C’ State merged with the then State of Bombay in the wake of States Reorganization Act, 1956 and thereafter with effect from 01/05/1960 it became a part of the State of Gujarat. On 29/02/1964 the Major Port Trust Act, 1963 came into force and in pursuance thereof, the Central Government constituted the Board of Trustees for administering the Kandla Port.
2.1. It is the case on behalf of the petitioner-KPT that original Survey No. 227 and Survey No. 228 of village Kidana of Anjar Taluka have been renumbered as Survey No. 155/1. It is the case on behalf of the petitioner-KPT that original Survey No. 227 and Survey No. 228 were acquired by the then State of Kutch for public purpose viz for development of Kandla Port, which was given to the Kandla Port Trust and thus the land bearing old Survey No. 227 and Survey No. 228, which have been reconstituted as Survey No. 155/1 absolutely vested in KPT and KPT is the owner and in occupation and possession of the same. In support of the aforesaid, KPT has produced on record various notifications issued under Section 4 of the Land Acquisition Act and the orders passed by the then State of Kutch, which are produced on record in Special Civil Application Nos. 1878/1994 and 770/1992.
2.2. It is the case on behalf of the petitioner-KPT that despite the above, the State Government, without any authority under the law, started allotting the plots, out of the land bearing Survey No. 155/1 (which is forming out of land bearing old Survey No. 227 and Survey No. 228) illegally and without authority under the law and such an order was passed on 17/12/1991, which came to be challenged by KPT by way of Special Civil Application No. 770/1992. It is the case on behalf of the petitioner-KPT that interim relief was granted in Special Civil Application No. 770/1992. It is also the case on behalf of the petitioner-KPT that thereafter various representations were made to the State Government, such as Collector, Kutch, Deputy Collector, Mamlatdar, Deputy Secretary etc. opposing the order of allotments and submitting that as such the lands/plots, which are allotted and/or proposed to be allotted, vests in KPT and KPT is the owner and the State Government has no jurisdiction and/or authority to allot the land, which vest in KPT. It is the case on behalf of the petitioner that the said representations were neither decided nor responded by any of the authorities and on the contrary the State Government/Collector, Kutch continued to allot the lands/plots, out of the land bearing Survey No. 155/1, which was originally land bearing Survey No. 227 and Survey No. 228, which vest in KPT. Thus, the dispute is with respect to the land bearing Survey No. 227 (old) and other lands, which is now forming part of Survey No. 155/1 and, therefore, it is the case on behalf of the petitioner-KPT that the land bearing Survey No. 155/1 belongs to and vests in KPT and KPT is the owner and, therefore, the State Government/Collector, Kutch has no authority to allot any of the land/plot out of Survey No. 155/1.
3. Some of the allotment orders are subject matter of Special Civil Application Nos. 1878/1994 and 770/1992. Some of the allottees of the land/plot, out of the land bearing Survey No. 155/1, were apprehending that KPT would disturb their possession and, therefore, all of them have preferred Special Civil Application Nos. 18037/2003; 18049/2003; 18050/2003; 18057/2003 and 1996/2001 and all the petitioners have relied upon the order of allotment passed in their favour respectively granted by the State Government/Collector, Kutch.
4. On the other hand, it is the case on behalf of the State, so stated in paragraph 5 of the affidavit-in-reply dated 27/07/1994 in Special Civil Application No. 1878/1994, that the old Survey No. 227 of village Kidana consists of area admeasuring 1468 acres 33 gunthas whereas the new survey No. 155/1 consists of the area admeasuring 5529 acres and 7 gunthas and, therefore, it is the case on behalf of the State that Survey No. 155/1 consists of several other old survey numbers, including survey nos. 227 and 228 besides certain traverse (kharaba land) i.e. padtar land. It is submitted that old survey no. 227 consisted of the land admeasuring 1469 acres and 33 gunthas and the old survey no. 228 consisted of 1102 acres and 6 gunthas and therefore, the total area of old survey nos. 227 and 228, which is now part of new Survey No. 155/1 has the area of 2571 acre and 39 gunthas, out of which the land admeasuring 335 acres and 20 gunthas was acquired for the petitioner-KPT with a result that the land admeasuring 2236 acres and 19 gunthas had remained with the Government as Kharaba land. It is the case on behalf of the State Government that the petitioner has been allotted the plots, out of the said remaining land, being Survey Nos. 227 and 228. Considering the aforesaid facts and circumstances of the case, it appears that as such there is a dispute with respect to the ownership of the land bearing Survey No. 155/1, which is consisting of old Survey Nos. 227 and 228, which according to the KPT vests in the KPT. It is also not in dispute that as such none of the State authorities have so far considered any of the representations made by KPT and/or none of authorities had hold any inquiry with respect to the ownership of the land bearing Survey No. 155/1. It appears and it cannot be disputed that the land bearing Survey Nos. 227 and 228 situated at village Kidana had been acquired and vest in KPT, which is a public body. It might be possible that while reconstituting Survey No. 155/1 some other land/kharaba land might have been included alongwith land bearing Survey Nos. 227 and 228 and, therefore, an inquiry is required to be held geographically and as such inquiry with respect to actual physical location of the old survey nos. 227 and 228 in the reconstituted survey no. 155/1 has to be held. If ultimately, it is found that out of the land bearing survey no. 155/1, the land which is sought to be allotted is consisting of the land bearing old survey nos. 227 and 228, which is vested in KPT, in that case, the State Government would have no jurisdiction and/or authority to allot the land. On the other hand, if it is found that the plots, which are sought to be allotted out of survey no. 155/1 are out of the land other than old survey nos. 227 and 228 and/or any other land, State Government can allot the land in accordance with law after following due procedure as required and, therefore, as such a detailed inquiry is required to be held by a competent authority after giving an opportunity to the KPT. It appears to the Court that with respect to such a dispute, the State Government/Collector, Kutch is required to hold an inquiry as contemplated under Section 37 of the Bombay Land Revenue Code.
5. Under the circumstances, there is a broad consensus between the learned advocates appearing on behalf of the respective parties, more particularly, Shri K.M. Patel, learned Senior advocate appearing with Shri Alpesh Rajpuriya, learned advocate appearing with Shri Dhaval Vyas, learned advocate appearing on behalf of KPT, Shri P.K. Jani, learned Government Pleader appearing with Shri J.K. Shah, learned AGP appearing on behalf of the State and the learned advocates appearing on behalf of the parties/allottees of the plot bearing Survey No. 155/1, that let the Collector, Kutch hold an inquiry under Section 37 of the Bombay Land Revenue Code to decide the ownership of the land bearing Survey No. 155/1, which is admittedly consisting of the land bearing old Survey Nos. 227 and 228 also and the Collector, Kutch is also required to hold an inquiry geographically and with respect to physical location of the land bearing old Survey Nos. 227 and 228 in the new constituted Survey no. 155/1 is also to be made, which has vested in KPT. There is also a broad consensus between the learned advocates appearing on behalf of the respective parties, inclusive of the allottees of the plots out of the land bearing reconstituted Survey No. 155/1, that till such inquiry is concluded all the parties to maintain the status-quo. Meaning thereby, if any manufacturing activity is going on, the same shall be continued and whoever is in possession, pursuant to any order of allotment, shall be continued to be in possession. However, there shall not be any further new construction and/or new activities, meaning thereby, whatever the position is there shall be continued. However, the same shall be without prejudice to the rights and contention of the respective parties in the inquiry and subject to the ultimate outcome of the inquiry under Section 37 of the Bombay Land Revenue Code. Hence, during pendency of the inquiry, KPT shall also not disturb the possession of those persons, who are allotted the land/plots out of the land bearing Survey No. 155/1 by the State Government/Collector, Kutch.
6. In view of the above broad consensus between the learned advocates appearing on behalf of the respective parties, all these petitions are disposed of with the following observations and directions, which are ad invitem.
(i) Let the Collector, Kutch-Bhuj hold necessary inquiry with respect to ownership of the new land bearing Survey No. 155/1 in exercise of powers under Section 37(2) of the Bombay Land Revenue Code and hold necessary inquiry whether any part of the land bearing old Survey No. 227 and Survey No. 228 and/or any other land allotted to KPT either by acquisition and/or by other mode is forming part of Survey No. 155/1 or not and which part of the land, which was alloted to KPT is falling in the new land bearing Survey No. 155/1. The aforesaid inquiry be held after giving an opportunity to KPT to submit their case alongwith necessary documents/documentary evidences and after getting the entire land bearing Survey No. 155/1 surveyed by DILR and considering the documentary evidences that may be produced by the KPT. In the meantime, it will be open for KPT to have the survey report by the Minor Port Surve Organisation at their own cost by way of additional evidence with a copy to the Collector/State Government within a period of three months and the same may also be considered by the Collector by holding an inquiry under Section 37(2) of the Act. The aforesaid exercise shall be completed by the Collector within a period of nine months from today.
7. Till then the interim-relief granted by this Court of directing the parties to maintain status-quo as on 07/03/1994 with respect to the entire land bearing Survey No. 155/1 is directed to be maintained by all the concerned and the same shall be without prejudice to the rights and contentions of the respective parties and subject to the ultimate outcome of the inquiry under Section 37(2) of the Bombay Land Revenue Code and subject to the further order that may be passed by the appellate Court and/or concerned Civil Court. However, it is observed that as agreed between the parties in case there is any extra ordinary urgency of allotment from part of land bearing survey no. 155/1 for any public purpose, it will be open for the Collector and/or State Government to move this Court in the present proceedings for appropriate permission, which can be considered in accordance with law and on its own merits subject to hearing the KPT.
8. It is observed that it will be open for any of the private allottees, who are allotted the plots, out of the land bearing Survey No. 155/1, which is disputed by the KPT, to submit an appropriate application before the Collector to give audience,which shall be considered in accordance with law and on its own merits.
9. With this, the present petitions are disposed of.
CIVIL APPLICATION NO. 8018/2010 In view of the order passed in Special Civil Application No.
1878/1994, no order in the Civil Application.
(M.R.SHAH, J.)
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