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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 ..... 71 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 appellants herein of the lands i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Department stating that the titl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 State Government that they were being harassed by the Officials by multifari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proceedings under the ALC Act would lie in respect of the land in question. SURVEY NO. 469/1 16. We shall now come to survey No. 469/1 which could not be developed contemporaneously along with other survey nos. since there existed reservation on this land for Bhavnagar University. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment 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 2002, inter alia, directed the authorities to sanction the plan of Survey No. 469/1, make Revenue entries in the Revenue records and collect the dues related to the said land. Civil Appeal No. 5556 of 2001 was dismissed by this Court as withdrawn after a detailed hearing. Thus the issue of the ULC Act and the ALC Act raised in the S.C.A. No. 941 of 1980 was finally conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.09.1991,10 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 committed by the "Mill" cannot be termed to be legal. In these circumstances, show cause notice for breach of Section 66 of the Bombay Land Revenue Code, 1879 is hereby issued/given." 28. The appellant moved refusal application before the Principal Secretary, Revenue Department with a request to direct the Collector to recuse himself from the hearing of the aforementioned show cause notices issued by him. Another reminder was issued on 21.07.2003. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 State Government in the Revenue Records in respect of all Survey Nos. without considering the orders passed by the High Court and of this Court as well as pending dispute before the High Court for the same and without hearing the objections of the appellant On 23.03.2004, the High Court held that its order dated 24.112000 passed in SCA No. 941 of 1980 had merged with the order of 14.11.2002 passed by this Court in Civil Appeal No. 5556 of 2001 filed by the Bhavnagar Municipal Corporation which was dismissed as withdrawn. 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vation, 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 in question would be governed by the ULC Act and not by the ALC Act. Therefore, he contended that the appellant was entitled to retain the entire vacant land comprising the above survey numbers for the purpose of construction of dwelling units under Section 21 of the ULC Act. So far as Survey No. 469/1 is concerned, the said land could not be developed contemporaneously since there existed a reservation on this land for Bhavnagar University and the Special Civil Application filed by the Bhavnagar University questioning the order dated 6.12.1999 granting exemption t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 related to the said land. This Court dismissed the civil appeal preferred by the Municipal Corporation as withdrawn after a detailed hearing. 40. Our attention was further invited to the judgment of this Court in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. (supra) by which this Court dismissed the appeals filed by the Bhavnagar University. Therein the learned counsel appearing for the University contended having regard to the scope and purport of the said Act the High Court must be held to have erred insofar as it failed to take into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 legislations were, at the best, collateral and incidental observations made only with a view to hold that after a long lapse of time, the Collector could not have sought to disturb the mutation entry on the strength of the contravention of the provisions of other enactments referred to above. Similarly, the principal issue which arose for the consideration of the High Court in SCA No. 941 of 1980 at the behest of the Bhavnagar Municipality was the legality and validity of the order dated 6.12.1979 passed by the authority concerned sanctioning the weaker section scheme under Section 21 of the ULC Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, Building Regulation etc. and for using land of different survey numbers for non-agricultural purpose without permission. This order was with reference to the show cause notice dated 12.5.2003. 46. Another order was passed on dated 30.8.2003 deciding show cause notice dated 13.5.2003 issued under Section 67 of BLR Code etc. for breach of conditions of non-agricultural permission granted vide order dated 23.6.1980 in respect of 720 sq. mts. of land of Survey No. 4701/1 and construction is not as per Condition No. 4 or order of non-agricultural permission since the construction has been carried out on the land in question in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant-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, submitted that a plain reading of the judgment, impugned in these special leave petitions, passed by the High Court makes it abundantly clear that the High Court has not gone into the merits of the case of the appellant and both the miscellaneous applications were rejected mainly on the following grounds: i) That the application for clarification and directions is not maintainable in law since the same under the guise of seeking clarification, challenge legality and validity of various orders passed by the different authorities under different statutes which are the subject matter of challenge by the appellant before various revisional and appellate authorities; ii) That appellants' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislations 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 action against them. He also denied that the show notice notices and the orders passed thereon are not hit by the principles of res judicata and constructive res judicata and/or principles analogues to res judicata and constructive res judicata, as alleged or otherwise. 58. We have given our anxious consideration to the rival claims to the detailed and elaborate submissions made by the counsel appearing on either side. 59. This Court, on 5.5.2004, heard these special leave petitions and by an interim order directed the District Inspector, Bhavnagar to go at the spot and identify and earmark 76 acres and 39 guntas of land in Survey No. 469/1 in the presence of representative of Bhavnagar Municipal Corporation, Government and the petitioner-Mill, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 a long period, is an action highly belated and unjust" 60. In the special leave petition filed against the aforesaid judgment of the High Court, the very same grounds raised in the counter affidavit under reply had been raised as well as argued before this Court and the same were rejected. The respondents once again raised those issues in Review Petition No. 33 of 2003 filed in this Court. The Review Petition was dismissed by this Court on 6.2.2003. Refusing to concede defeat, the then Collector filed affidavits in this Court and had remained present in this Court issued a series of show cause notices, wherein the orders of this Court was described as under: "For taking a decision in that regard due to lack of full facts before this Court, it was held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace 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 Survey No. 469/1 amounting to ₹ 29,618/- and development charges for the whole land amounting to ₹ 6 lakhs has already been paid by appellant No. 1 on 7.5.2002. The appellants have also paid scrutiny charges for the lay out plan for the whole land bearing Survey No. 469/1 amounting to ₹ 3,11,508/- and 1,55,754/- has already been paid on 13.5.2002 and 12.9.2003 by appellant No. 1. 64. It was also brought to our notice that with respect to the land of Survey No. 469/1, the authorities have already entered the name of the appellant in the Revenue records on 13.10.2002. Thereafter, the appellant's name was deleted from the said entry pursuant to the order of the Collector dated 29/30.8.2003 and the order of the City Mamlatdar dated 15.9.2003. Thereafter when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellants from carrying out the construction on the lands in question for the last four years even though the appellants have, succeeded in all the petitions before this Court. 67. We, therefore, direct all the authorities to comply with the orders passed by this Court on 5.5.2004 in its letter and spirit. We extend the time for compliance finally by four weeks from the date of the pronouncement of this judgment. Any lapse or delay on the part of the respondents herein will be viewed very seriously. 68. From the above discussion by us and of the record would clearly go to show that the following issues are covered by the earlier proceedings and finally decided by the Courts and reached its finality and which cannot be reopened again: The lands in Survey Nos. 469/1, 470/1, 471/2, 471/3 and 472 aggregating a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 of the High Court rendered on 24.11.2000 in SCA No. 1032 of 1996 and, therefore, there is no question of disturbing the mutation entry on the strength of the contravention of the provisions of other enactments now. Civil appeal No. 5536 of 2001 preferred by the Municipal Corporation was dismissed as withdrawn. Thus the issue of ULC Act and ALC Act raised in the XA 941 of 1980 was finally concluded by the said judgment. in the judgment in Bhavnagar University v. Palitana Sugar Mills Ltd. (supra), this Court decided the dispute between the Bhavnagar University and the appellant with reference to Gujarat Town Planning and Urban Development Act, 1976. The appeal filed by the Bhavnagar University was finally dismissed by this Court. Review petition No. 33 of 2003 was also dismissed by this Court. 70. Thus it is seen that the various proceedings were initiated again and again by the authorities which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax 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 and building plans as per the current development control rules and pass order in accordance with law. 75. We also direct respondent Nos. 1 & 2 to collect non-agricultural permission charges and conversion charges for the lands bearing Survey No. 470/1, 471/2, 471/3 and 472 situated at village Vadva, Bhavnagar as prevalent in the year 1981. 76. We further direct respondent Nos. 1 & 2 to collect non-agricultural permission charges and conversion charges for the land bearing Survey No. 469/1 as prevalent on 24.2.2003, which is the date on which the appellants had applied for the grant of non-agricultural permission for the said survey number and on receipt of payment to grant the non-agricultural permission in respect thereof as applied for. 77. For the foregoing reasons, we dispose of the appeals arising out of S.L.P.(C) Nos. 8718-8719/2004. In view of the disposal of the appeals, the Contempt Petition Nos. 410 and 411 of 2004 in Special Leave Petition No. 1562/2002 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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