1. By way of this intra-court appeal, the appellant - original petitioner has challenged the judgment dated 3.8.2010 passed by learned Single Judge in Special Civil Application No.8910 of 2010 by which the learned Single Judge has dismissed the petition filed by present appellant challenging the decision dated 25.6.2009 rendered by Deputy Secretary (Appeals), Urban Development and Urban Housing Department, Gandhinagar refusing the prayers made by the appellant - petitioner that several resolutions passed by Rajpipla Nagar Palika by which it was resolved that the property belonged to the appellant
- petitioner shall be acquired by the Municipality for widening of the street.
2. The brief facts arising from the case are as under:
2.1 That the disputed property, situated on City Survey No.368 having street no.21 in Rajpipla Town, belongs to the present appellant. It is alleged by the appellant - petitioner that, at the instance of some influential persons, the Rajpipla Nagar Palika issued a resolution on 21.3.1964 in a General Board Meeting of the Rajpipla Nagar Palika that the disputed land which is facing the main road, shall be acquired for widening the street for the convenience of public at large so that they can move freely in the area.
2.2 The General Board of the Rajpipla Nagar Palika by another resolution dated 27.10.1965, resolved that the resolution which was passed on 21.3.1964 is not required to be implemented and the proposal for acquisition of the disputed property shall be dropped.
2.3 The appellant-petitioner submitted an application under Section 155(1) of the Gujarat Municipalities Act, 1963, (hereinafter referred to as "the Municipalities Act") and requested the Chief Officer of Rajpipla Nagar Palika to permit him to construct a new house on the disputed land after demolishing the earlier construction. Along with the said application, the appellant - petitioner has submitted detailed plan of the proposed new construction along with the property card of the said property. The said application was submitted by the appellant - petitioner on 12.2.1979. Instead of processing the application, The Rajpipla Nagar Palika by a Resolution No.311 dated 30.7.1979 resolved that, after negotiating the price of the disputed property with the owner, same shall be acquired for widening the street, and if the owner does not agree with the same, it will be open for the Rajpipla Nagar Palika to proceed further in accordance with Section 268 of the Municipalities Act, which provides the procedure for deciding the compensation if the settlement is not arrived between the Municipality and the person whose property is under use or acquisition. On 21.5.1980 by a resolution of General Board of Rajpipla Nagar Palika, the resolution dated 30.7.1979 was stayed, and it was decided that another meeting shall be held for discussing the same issue. Again a General Board Meeting of Rajpipla Nagar Palika was held on 12.6.1980, and by Resolution No.66 it was held on the same day and it was decided that the Nagar Palika shall proceed with the acquisition under Section 268 of the Municipalities Act. It appears from the said resolution that the present appellant - petitioner was heard by the General Board of Municipality in which he has raised an objection that the property belongs to him, and being a private party the Municipality had no power or authority to treat the land as a part of street. The street in a municipal area is included in the property vesting in the Municipality, but the property as per the revenue record and the property card, belongs to him and, therefore, the same can be acquired only under the provisions of Land Acquisitions Act and cannot be treated as a part of street and, therefore, there is no question of paying compensation provided under Section 268 of the Municipalities Act.
2.4 By another Resolution No.176 dated 13.2.1991 it was resolved by the Municipality that, earlier resolution passed by the Municipality shall be continued and the street shall be widened, upon which the disputed property is situated.
2.5 By appeal under Section 258 of the Municipalities Act, the appellant
- petitioner challenged the resolutions passed by the Municipality by which it was resolved that the street shall be widened by treating the property as a part of Municipality. The Collector by an order dated 21.5.1992 dismissed the said appeal and held that the decision arrived at, by the Municipality was in the public interest.
2.6 The present appellant by way of Revision Application No.21 of 1992 challenged the said order dated 21.5.1992 passed by Collector under Section 258 of the Municipalities Act, to the State of Gujarat under Section 264 of the Municipalities Act. The Deputy Secretary of Urban Development and Urban Housing Department allowed the revision application in favour of the appellant - petitioner, and held that, the decision of the Municipality is not proper, since there are number of roads available which can be used by the public and the decision of the Municipality to acquire the land is not in the public interest.
2.7 The said order was challenged by Rajpipla Nagar Palika by way of filing Special Civil Application No.10825 of 1993 before this Court. While allowing the petition filed by the Municipality, it was observed by the learned Single Judge that the order passed by the revisional authority was not a reasoned one, and remanded the matter to the revisional authority to consider afresh after hearing all the concerned parties.
2.8 Pursuant to the order passed by the learned Single Judge, the revisional authority heard the matter again, and by an order dated 25.6.2009 dismissed the revision application filed by the appellant - petitioner.
2.9 Being aggrieved and dissatisfied with this order, the appellant-petitioner challenged the same by way of captioned Special Civil Application No.8910 of 2010 which was dismissed by the learned Single Judge dated 3.8.2010 which is appealed in the present proceedings.
3. During hearing of the appeal, by orders dated 22.9.2011, 1.2.2012 and 2.3.2012 the respondents were directed to file affidavits along with the photographs and relevant documents for consideration of the Court. Pursuant to these orders, the Chief Officer of the Municipality has filed three affidavits dated 14.10.2011, 17.2.2012 and 6.3.2012, and has produced communications as well as photographs and panchnama of the disputed property. The Resident Additional Collector of District Narmada (Rajpipla) has also filed an affidavit producing the property card, maps etc. The Under Secretary of Urban Development and Urban Housing Department, State of Gujarat by his affidavit dated 22.3.2012 has supported the affidavit filed by Resident Additional Collector of Narmada District. The appellant - petitioner has also filed his counters to these affidavits.
4. We have heard learned counsel Mr.D.N.Pandya for the appellant, learned AGP Mr.N.J.Shah for the respondents No.1 and 2, and learned counsel Mr.Adil Mehta for the respondent No.3 - Municipality.
5. Now perusing the resolutions as well as orders passed by the authorities of the State Government and perusing the photographs, property card and maps of the disputed property, we are of the opinion, that there is no doubt that the property belongs to the appellant - petitioner which is situated facing on the road. A Map produced by City Surveyor of Rajpipla Nagar Palika at page 97 along with the affidavit of Resident Additional Collector, it appears that the proposal of Rajpipla Nagar Palika to treat the said land as a part of Municipality and give compensation accordingly under the provisions of Section 268 of the Municipalities Act cannot be accepted. It is clear that, front side of the disputed property is on the main road, while backside of the said property, a narrow street merges with another narrow street. The property card which is produced by the appellant - petitioner as well as by the Resident Additional Collector, the disputed property is in the name of the appellant - petitioner which cannot be treated as a part of street and, therefore, the appellant - petitioner cannot be compensated for the same under the provisions of the Municipalities Act. It is not the case of Municipality that disputed property was encroached by the appellant though the same is situated at the end of a narrow street facing the main road.
6. The Municipality along with the affidavit has produced a communication dated 23.9.2011 addressed to the Collector by which a request has been made that the property in dispute, may be acquired and a Land Acquisition Officer may please by appointed so that the acquisition proceedings can be initiated. We are surprised by the gestures of the Municipality at this stage to acquire the disputed property after a long battle of legal proceedings between the parties. Though, there was no such intention shown in past, the appellant-petitioner has suffered a lot for number of years. Though the appellant had filed application under Section 155 of the Municipalities Act way back on 12.2.1979, the Municipality ought to have adopted the method which now it intends to adopt. Under Article 300A of the Constitution of India, it is a valuable right, and a person cannot be deprived of his property unless save by authority of law. In the present case, it is established that the Municipality did not follow the procedure which was required to be followed since number of years. The Municipality ought not to have prolonged the dispute which is of a trivial nature and ought to have proceeded further with acquiring the same without remain in misconception that the disputed property can be treated as a part of street and, therefore, the Municipality had power to acquire the same and to pay compensation under Section 268 of the Municipalities Act.
7. In the case of SURAT MUNICIPAL CORPORATION AND ANOTHER VS. BHIKHABHAI MORARBHAI PATEL AND OTHERS reported in 1994(2) GLR 947, the Division Bench of this Court has held that declaring the intention to acquire a particular property is not sufficient to refuse to sanction the plan for constructing a building submitted by a property holder. If the notification under Section 4 of the Land Acquisition Act is not issued, the authority is bound to sanction the building plans. In the instant case, it is an admitted position that no notification has been issued by the Government under Section 4 of the Land Acquisition Act and, therefore, the case on hand is squarely covered by the case of Surat Municipal Corporation (supra). In absence of any proceedings of acquiring the property under the provisions of the Land Acquisition Act, the appellant - petitioner cannot be deprived of his valuable right i.e. using his property for constructing a building on it in accordance with law.
8. A citizen is trying to get his plan sanctioned since 1979 and is stuck in a legal battle for a issue of trivial nature. The Municipality filed civil suit restraining the appellant - petitioner from constructing any building on the disputed property on the premise that the Municipality has not sanctioned the plans of appellant and dragged the appellant-petitioner in other proceedings. Though, we are satisfied that the Municipality, under one or other pretext, has not sanctioned the plan. We are of the opinion that this inaction on part of the Municipality is required to be deprecated.
9. We have not opined anything about the proceedings which the Municipality intends to take under the provisions of the Land Acquisition Act. However, we are making it clear that as per the judgment of Surat Municipal Corporation (supra), the Municipality is bound to decide the application dated 12.3.1979 submitted by the appellant-petitioner under Section 155 of the Gujarat Municipalities Act, in accordance with law, as early as possible.
10. In the result, the appeal is allowed. The impugned order dated 25.6.2009 passed by the respondent No.1 is quashed and set aside, and consequently the resolutions passed by Rajpipla Nagar Palika are also quashed and set aside. Similarly, the impugned judgment dated 3.8.2010 passed by the learned Single Judge in Special Civil Application No.8910 of 2010 is also quashed and set aside. However, in the facts and circumstances of the case, there shall be no order as to costs.
(V.M.
SAHAI, J.) (A.J.DESAI, J.) syed/ Top