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TMI Blog2004 (10) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... l battle in the Court of law from 1971 onwards and still has not reached the finality of the litigation for one reason or the other. 4. The former Ruler of Bhavnagar was the owner of large extent of lands in the area in question. The subject-matter of this litigation are the lands owned by the former Ruler comprised in survey Nos. 469/1, 470/1, 471/2, 471/3 and 472 Village Vadva aggregating about 952 acres being a Bid Land (a pasture land) was excluded from the purview of Gujarat Agricultural Land Ceiling Act, 1960, (hereinafter referred to as the ALC Act ). This decision taken by the Collector on 26.03.1971 went through the motion of appeal remand etc. and finally the Gujarat Revenue Tribunal (for short the GRT ) held that the land in question being the bid land was excluded from the purview of the ALC Act and remanded the matter to the Mamlatdar for fixing the ceiling of the other lands of the former Ruler. The review application filed by the State Government was also dismissed by the Tribunal on 15.04.1977. No further appeal was preferred by the State Government against the order of review. 5. The former Ruler executed a registered sale deed in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was entitled to retain the vacant land comprised in all the above survey nos. admeasuring 930 acres and 4 gunthas for the purpose of construction of dwelling units under Section 21 of the ULC Act. Pursuant to the sanction, the appellants have already developed the lands wherein about 7000 dwelling units have already come up. Presently, the appellant is seeking no objection permission and sanction of lay out plan in respect of the land situated in survey No. 469/1 which could not be developed earlier since there existed a reservation on this land for Bhavnagar University. 7. The Bhavnagar Municipality filed a writ petition being special Civil Appeal No. 941 of 1980 for quashing and setting aside the order dated 06.12.1979 granting exemption to the lands and sanctioning the scheme under Section 21 of the ULC Act and a further direction to the authorities to adjudicate and decide the ALC Act proceedings. The High Court passed an interim order in favour of the Municipality restraining the appellants from implementing the scheme. Various affidavits were filed by the competent authority and the Deputy Collector under the ULC Act and the Deputy Collector to the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r own risk and cost but the fact of the such construction will not be pleaded as a circumstance in their flavour at the time of final hearing of the matter. Affidavit to be completed by both the sides within 6 weeks from today. To be expedited. 10. The Gujarat Revenue Tribunal by its judgment in Revision Application No. 1723 of 1983 dismissed the Revision Application of the State Government in respect of the ALC Act proceedings. It is to be noticed that this revision was filed by the State Government against the order dated 09.11.1979 and 20.11.1979 whereby the Deputy Collector dropped the proceedings filed by the former Ruler under Section 8 of the ALC Act for declaration that the sale deed dated 31.03.1971 was not effected by him with a view to defeat the ALC Act. The said order thus finally concluded the proceedings under the ALC Act No further appeal was preferred by the State Government. 11. As several notices had been issued by the Revenue officials under the Land Revenue Code and other laws in respect of the land in question and the writ proceedings in the High Court and the stay order obtained, the appellant made a representation dated 27.08.1990 to the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bid Lands were not covered by the ALC Act as it then stood, and that it was the ULC Act which would govern the land in question and not the ALC Act. 14. The Deputy Collector, Bhavnagar in Revision Case No. 1/83-84 after considering the entire issues of the said notice held that ownership of the land in question was of the appellant It was decided that the Revenue mutation entry No. 1950 as recorded in village form No. 6 was legal and valid. It was also decided to withdraw the show cause notice dated 27.09.1991 and to drop all the proceedings commenced under the said notice. 15. By a separate order rendered in Ceiling Appeal No. 4/82-83 under the ALC Act the Deputy Collector confirmed the order of the Mamlatdar dated 16.09.1982 in which it had been, inter alia, held that the ALC Act did not apply to the land in question. The Mamlatdar in the said order dated 16.09.1982 had followed the aforementioned order of the GRT dated 03.01.1974, whereby the GRT had held that the land in question was not covered by the ALC Act By the said order dated 16.09.1982, the Mamlatdar, inter alia, determined the ceiling of the other lands of the former Ruler. It was thus held that no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.07.1992 was upheld by the said judgment in which all the issues were concluded. 19. By a separate judgment pronounced on the same day, the High Court rejected all the contentions raised by the Municipal Corporation in Special Civil Application No. 941 of 1980 relating to sanction of ULC Act scheme and the ALC Act proceedings. By a common judgment a declaration was given in Special Civil Application No. 10108 of 1994 that the designation of the land bearing Survey No. 469/1 reserved for Bhavnagar University had lapsed. The issue of the ULC Act and the ALC Act was concluded by the said judgment rendered in S.C.A. No 941 of 1980. 20. While granting leave, this Court directed statue quo to be maintained in the SLP filed by the Municipal Corporation against the judgment in SCA No. 941 of 1980. This Court again modified the interim order dated 17.08.2001 directing that it will be open to the appellant herein to construct dwelling units on the lands in accordance with the approved or sanctioned scheme but such construction would be at its own risk and shall not be a factor in its favour. 21. This Court also passed an order in Contempt Petition No. 142 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one through the review petition and the connected papers. We do not find any merit in the review petition. The review petition, accordingly, dismissed. 27. After the dismissal of the review petition again notice of inquiry was issued by the Deputy Collector under Section 37(2) of the B.L.R. Code for deciding the title of R.S. No. 472 which issue was covered by earlier proceedings finally decided in favour of the appellant In proceedings dated 27.09.1991,10 07.1992, 25.01.1996, 24.11.2000, 05.12.2002 and 06.02.2003 the Collector issued 9 show cause notices on 12.05.2003, 13.05.2003, 17.05.2003, 19.05.2003 and 22.05.2003 in regard to the dispute covered by earlier proceedings between the parties and finally decided in favour of the appellant In the show cause notices, the Collector stated as follows:- For taking a decision in that regard, due to lack of full facts before the Hon'ble Supreme Court, it was held by the Hon'ble Supreme Court that it does not see any reason to interfere with the judgment of the Hon'ble High Court rendered in Special Civil Application No. 1032 of 1996 dated 24.11.2000. On the basis of this judgment, the illegal acts committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss land under the ALC Act and, therefore, all lands in question were vest in the State Government According to the appellant, the ALC Act proceedings were concluded in the earlier proceedings dated 06.03.1987 and 10.07.1992. On 16.09.2003, the Collector issued a notice for modification of Revenue Entry No. 1950 in respect of survey Nos. 469/1, 470/1, 471/2, 471/3 and 472 in the name of the State Government Though the said right and title entry was confirmed by the Deputy Collector vide order dated 10.07.1992 and the same were upheld by this Court Against the respective orders of the Collector, the Deputy Collector and the Mamlatdar ALT, the appellant filed appeals before the Revenue Secretary and the Collector of Bhavnagar District respectively. The appeals are pending. 32. On 27.11.2003, the appellant moved the High Court of Gujarat in Misc. Civil Application No. 2340 of 2003 for clarification and directions and second Misc. Civil Application No. 2341 of 2003 for initiating contempt proceedings against the Collector Kantilal Patel, the Deputy Collector and the Mamlatdar ALT. The right and title Entry No. 1950 was finally modified by the Collector office on the name of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich on its own analogy was bereft of jurisdiction to proceed as it is well considered that petition for contempt only lies before the Court whose order is violated. Therefore, he contended that the observations made by the High Court as regards the merits of the two applications were without jurisdiction. In the present case, the High Court observed in para 22 as follows:- Appropriate remedy of the Petitioners would be to file an application if at all it is maintainable before the Supreme Court. 36. Having made the aforesaid observation, it is submitted that the High Court encroached upon the domain of this Court by making observation on the question as to whether the clarification application was maintainable or not. 37. Mr. Rohatgi submitted that the order of the High Court suffers from infirmities and is thus liable to be set aside on this short ground alone. 38. Mr. Rohtagi further submitted that having purchased the land by a registered sale deed, the appellants became the owner of the entire extent and that the land not being fit for cultivation was excluded from the purview of the ALC Act The authorities have also clarified that the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unfair, unjust and too late in the day for the Collector to raise various issues such as illegal sale of bid land, breach of Saurashtra Gharkhed Ordinance, ALC Act etc. which were closed and decided three and a half years earlier. It was also submitted that the High Court by a separate judgment rejected all the contentions raised by the Municipal Corporation in Special Civil Application No. 941 of 1980 relating to sanction of ULC Act Scheme and the ALC Act proceedings. The Court also declared that the designation of the land bearing Survey No. 469/1 reserved for Bhavnagar University had lapsed. Thus Mr. Rohtagi submitted that the issue of ULC Act and ALC Act was concluded by the above judgment After referring to the judgment of this Court, Mr. Rohtagi submitted that this Court has already granted permission to the appellant to construct dwelling units on the land in accordance with the approved or sanctioned Scheme but such construction would be at its own risk and shall not be a factor in its favour. This Court also in the contempt proceedings directed the authorities to sanction the plan of Survey No. 469/1 and make Revenue entries in the Revenue record and collect the dues rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no right or jurisdiction to issue show cause notices in regard to the earlier proceedings finally decided in favour of the appellant to which the respondents were also parties. Concluding his arguments, Mr. Rohtagi submitted that the authorities have failed to act on the directions issued by this Court The appellant moved the High Court for clarification and also initiated contempt proceedings. Mr. Rohtagi also submitted that the authorities must be directed to issue the planning permit for construction of the houses with reference to Survey No. 469/1 immediately and on payment of necessary charges etc. 42. Mr. C.A. Sundaram, learned senior counsel appearing for the respondents, submitted that the principal issue which directly and substantially arose and which was decided by the High Court in SCA No. 1032 of 1996 was in respect of the validity of mutation entry No. 1950 and that what was finally and conclusively decided by the High Court in its aforesaid judgment was a controversy relating to the validity of mutation entry arising directly and substantially in the writ petition and the observations relating to various other issues/contraventions under other independent le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever a question of the said issue reaching any finality. Mr Sundaram further submitted that it was owing to the aforesaid reasons that the fresh proceedings came to be pursued against the appellant-Company and that the proceedings were initiated in view of the breaches committed by the appellant-Company under various enactments. According to Mr. Sundaram, the appellant-Company appeared in response to the aforesaid show cause notices in different sets of proceedings and that in all the aforesaid proceedings, the appellant-Company was duly represented by its advocate and ultimately the said orders have been rendered after affording ample opportunities of being heard and after considering the applicable legal provisions. 45. On 30.8.2003, an order was passed imposing penalty, conversion tax, non-agricultural assessment, local fund and education cess totalling to the tune of ₹ 5,80,61,510/- in respect of 31,48,208 sq. mts. (excluding land of Survey No. 472), inter alia, on the ground that the aforesaid transfer of open plots in favour of third parties were in violation of the provisions of Registration Act, Bombay Stamps Act, Town Planning Act, Municipal Regulation, Buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on repeal of ULC Act all the lands are governed by the provisions of the Gujarat Agricultural Lands Act, 1960 and that the appellant-Company had admittedly acquired surplus land admeasuring 880 acres and 4 guntas in excess of the prescribed ceiling limit of Vadva village of Bhavnagar District, which acquisition is required to be declared illegal and the excess land vests in the State Government. 52. Another order was issued in respect of the land bearing Survey No. 472 admeasuring 101 acres 14 guntas, inter alia, on the ground that the land bearing Survey No. 472 since 1949-1955 was never included in Village Form No. 6 and was entered as Government land. 53. The appellant-Company has, therefore, taken up various proceedings against the orders passed by various authorities and during the pendency of the aforesaid appeals, the appellant-Company filed two miscellaneous civil applications being 2340 of 2003 and 2341 of 2003 before the High Court seeking clarification and also initiating contempt proceedings and against the order of rejection, the appellant have filed the above appeals herein before this Court. 54. Mr. Sundaram, after narrating all the events ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarification of its judgments rendered in SCA Nos. 941/1980 and 1032/1996. 55. Mr. Sundaram reiterated that the High Court did not go into the various other contentions raised on behalf of the appellants relating to the merits of the case and that, therefore, it is not correct on the part of the appellants to contend that the High Court has made observations as regards the merits of the applications despite it having expressly come to the conclusion that since the order of the High Court had merged with the order of this Court and that, therefore, any such application would lie only before this Court. 56. Concluding his arguments, Mr. Sundaram submitted that fresh nine orders passed by various authorities under various legislations in the year 2003 furnished fresh causes of action to the appellants and the same cannot be set aside by entertaining an application which is styled as an application for clarification and directions. 57. According to Mr. Sundaram, the appellants have committed breaches of various laws with impunity and now under the guise of bar of res judicata and under the threat of contempt, want the authorities to desist from taking any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice issued on 25.1.1996 to revise the order of the Deputy Collector passed on 10.7.1992 being after a period of almost 3 years and 6 months. It is much beyond a reasonable period of one year as has been held by the Division Bench in the case of Bhagwanji Patel (supra). As has been narrated above in statements of facts, not only that the Revenue Entry was confirmed but the State Government had sanctioned construction scheme prepared by the petitioner company for construction of dwelling units for weaker sections of the society. The petitioner on that basis spent crores of rupees for development of the land. It is reported that on part of the land some dwelling units have been constructed. It is too late now for the Collector, Bhavnagar to raise an issue that part of the land was Bid Land and the erstwhile ruler of Bhavnagar could not have sold it to the petitioner company and it is not covered in the definition of 'agriculturist' under the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance Act, 1949. The petitioner's grievance is legitimate that attempt to upset the construction scheme by treating the urban land to be an agricultural land after such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders of this Court, to say the least, is plainly perverse and amounts to gross contempt of this Court. We are pained to say that the then Deputy Collector has scant respect for the orders passed by the Apex Court 63. We have perused the various counter affidavits and the various notices issued on different occasions. They are all mere repetition of the stand taken by them in the earlier proceedings before this Court which has been elaborately dealt with in the earlier proceedings. Insofar as Survey No. 469/1 is concerned, several notices were issued by the appellants herein to the Commissioner, Bhavnagar Municipal Corporation and the Collector, Bhavnagar inviting their attention to the order dated 5.5.2004 passed in the present appeals. Several correspondence took place between appellant No. 1 and the authorities from 10.5.2004 to 29.6.2004. The authorities have not permitted the appellants to carry out the construction on the said land on Survey No. 469/1. Identification of the land has not also been done as directed by this Court. In the meanwhile, the appellant paid development charges to Bhavnagar Area Development Authority for construction of various blocks of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , appellant No. 1 once again called upon the Collector, the Commissioner, the Deputy Secretary, Revenue Department and other officers of the State Government to forthwith comply with the orders passed by this Court on 5.5.2004. The authorities refused to sanction the plan in view of the pending dues. The appellant informed the Collector, the Commissioner and other authorities that the order was passed by this Court on 5.5.2004 only in respect of Revenue Survey No. 469/1 and the dues payable only for the said land. It was also informed that all the dues which were demanded by the authorities in respect of Revenue Survey No. 469/1 aggregating amount of ₹ 11,80,607/- has already been paid by the appellant and, therefore, call upon them to comply with the order passed by this Court on 5.5.2004. 66. In our opinion, the conduct and behavior of the Collector, the Commissioner, the Dy. Secretary to Revenue Department and the Deputy Commissioner are improper and less said is better. In our opinion, in respect of the specific direction issued by this Court on 5.5.2004, the authorities are deliberately not complying with the orders passed by this Court and prevented the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 was invalid. 69. On the abovementioned grounds, the mutation entry was sought to be cancelled. The Deputy Collector, Bhavnagar held that the ownership of the land in question was of the appellant and a decision was taken that the Revenue mutation No. 1950 as recorded in Village Form No. 6 was legal and valid which was also decided to withdraw the show cause notice dated 27.7.1991 and to drop all the proceedings commenced under the said notice. The Deputy Collector also confirmed the order of the City Mamlatdar dated 16.9.1962. The reservation of Survey No. 469/1 in favour of the Bhavnagar University had lapsed. The High Court, in its judgment, in SCA No. 1032 of 1996 quashed the notice dated 25.1.1996 of the Collector. The High Court observed that it is unfair for the Collector to raise various issues such as illegal sale of bid land, breach of Saurashtra Gharkhed Ordinance, ALC Act etc. which were closed and decided earlier. The issue of ULC Act and ALC Act was concluded by the judgment of the High Court in SCA No. 941 of 1980. No further action can be taken for disturbing the finality of the mutation entry in view of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have constructed dwelling units on the lands in question not in accordance with the sanctioned scheme under the ULC Act and that the appellants have put up construction contrary to the sanctioned scheme. If so, it is open to the respondents to proceed against the appellant with regard to the violation of permission granted to construct the dwelling units on the lands in question after giving notice and after affording sufficient opportunities to the appellant to put forth their grievance in this regard. 74. In the result, we allow the appeals in part and direct the Collector, Bhavnagar to grant non agricultural permission in respect of the land of about 76 acres 36 guntas comprised in Survey No. 469/1 Bhavnagar District after collecting the non-agricultural tax calculated at the rate of 5% per sq. mt. Applicable at the time when the application was made by the applicant i.e., 24.2.2003 which aggregate to ₹ 15,57,540/-. Dispute, if any, with regard to the tax calculated and the rate has to be agitated separately and collected later. The Commissioner of Bhavnagar Municipal Corporation is directed to consider the application for sanction within four weeks the lay out an ..... 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