Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 849 (GUJ)

Sukhiben Vestimal Soni v. State of Gujarat

2014-07-31

G.B.SHAH

body2014
JUDGMENT G.B. Shah, J. 1. Heard, learned Advocate Mr. S.V. Parmar for the petitioner, Mr. B.S. Patel, learned Advocate for the respondent No. 2, Mr. N.K. Majmudar, learned Advocate for the respondent No. 3 and Mr. Rahul Dave, learned Assistant Government Pleader for the respondent No. 1. In Para 2 of this petition it is averred that this petition is directed against the order dated 11-3-2002 passed by respondent No. 2-Ankleshwar Nagar Palika (hereinafter referred to as the 'Nagar Palika') at the behest of the respondent No. 1-Collector, Bharuch District and to say that encroachment has not been regularized prima facie appears not correct because it is not the encroachment but a planned action of the respondent No. 2-Nagar Palika and Hiralal Nathubhai Choksi, who is not the party and who has sold the land in question along with the immovable property to the present petitioner. 2. The main prayer sought for in the present petition reads as under: "8(A) Issue writ in the nature of Certiorari or any other appropriate writ, direction or order, quashing and setting aside the order Annexures 'A', 'B', 'E', 'F', 'G', and T. 8(B) xxx xxx xxx." 3.1. Before narrating the facts it is desirable to go through the map produced at page No. 82, on which, the learned Advocate for the petitioner has placed reliance. Drawing attention of the Court on the said map, the learned Advocate for the petitioner submitted that the present petitioner is the owner of land being City Survey Nos. 1140 and 1141, which are marked in red cross lines and the blue coloured portion, shown in the said map, is the subject-matter of the present petition (hereinafter referred to as 'the land in question'). One Shri Bhadrakant H. Shah, the respondent No. 3 is the owner of City Survey No. 1423, shown in the said map. The learned Advocate for the petitioner further invited attention of the Court to said City Survey No. 1423 as well as City Survey No. 816 and submitted that referring to the middle portion in between both the said City Survey numbers, the portion shown as road appears 6.70 meters wide. He then invited attention of the Court to the southern end of the road adjacent to the City Survey No. 1145 and submitted that width of the said road, as shown, is 9.70 meters. He then invited attention of the Court to the southern end of the road adjacent to the City Survey No. 1145 and submitted that width of the said road, as shown, is 9.70 meters. The learned Advocate for the petitioner then submitted that thus it is clear from the map that the land in question, which is shown in blue colour in the map, is on the northern side of the petitioner's property, which is, as such, admeasuring 25' x 3', which comes to 6.97 sq.mtrs., and leaving the said land in question, mere appears 13 meters wide road and at some places 13.10 meters wide road on the northern side of the said land in question. Likewise, road in between City Survey Nos. 1134 and 1141, which is west to east direction, is of 12.50 meters and going downwards near City Survey No. 1145, the width of the road from west towards east is 9.70 meters. Mr. Parmar, learned Advocate for the petitioner, has mainly submitted that the blue coloured portion in the map on page No. 82 is not a part of the public street. It is pertinent to note at this juncture that, as reflected in the order dated 24-2-2002, Mr. Parmar, learned Advocate for the petitioner, has marked the land in question in blue colour in me said map at page No. 82 (Annexure 'K' to the petition), showing me petitioner's property bearing Survey Nos. 1140 and 1141 by drawing the red cross lines in the said map. It is not in dispute that so far as respondent No. 3 is concerned, his property is situated at Survey No. 1423, which appears a little far from the land in question. 3.2. During the course of his submissions the learned Advocate for the petitioner has placed reliance on Rule 53 of the Gujarat Land Revenue Rules, 1972 (hereinafter referred to as 'the Land Revenue Rules'), which provides for unoccupied building sites etc. within municipal limits to be distinguished from lands forming part of public streets. The said Rule reads as under: "53(1) In municipal districts or boroughs building sites and plots of open ground, which have not been dedicated to public use or already transferred to the municipality, are hereby declared to be specially reserved by the State Government within the meaning of sub-sec. (2) of Sec. 50 of the Bombay District Municipal Act, 1901 or sub-sec. (2) of Sec. 50 of the Bombay District Municipal Act, 1901 or sub-sec. (2) of Sec. 63 of the Bombay Municipal Borough Act, 1925, as the case may be. This reservation does not apply to small pieces of ground lying between the houses and the road-way in an irregular street or road of varying width, which should be recognized as forming part of the street and vesting in the municipality unless private individuals have rights thereto. But separate vacant sites between houses do not vest in the municipality, even though, they are unenclosed unless they have been transferred to the municipality by the State Government." 3.3. Drawing attention on above Rule, the learned Advocate for the petitioner has then submitted that the land in question is the land which is situated in between City Survey Nos. 1140 - 1141 and the road adjacent to it and so far as said small pieces of ground lying between the houses and road-way in an irregular street or road of varying width is concerned, the reservation does not apply to the same as mentioned therein and the municipality can transfer the same under the said Rule 53, as referred hereinabove, and in the case on hand, me respondent No. 2-Nagar Palika has transferred the said land by executing the Registered sale-deed dated 18-4-1981 to one Hiralal Nathubhai Choksi recovering the amount mentioned therein and the said land in turn has been sold by said Hiralal Nathubhai Choksi to present petitioner-Sukhiben Vestimal Soni by Registered sale-deed dated 4-2-1988 and he has also produced the attested photostat copies of both the aforesaid sale-deeds, which are directed to be taken on record. 3.4. Drawing attention on the above-referred Registered sale-deed, the learned Advocate for the petitioner has then submitted that after the lapse of 18 years, the Collector i.e. respondent No. 1 herein, quashed and set aside the Resolution passed on 30-10-1980 by the respondent No. 2-Municipality to sell the land to Hiralal Nathubhai Choksi and the municipality was directed to remove the encroachment. The said matter was taken to me State Government in revision and the revision application was also dismissed on 1-7-2000, copies of which are annexed at Annexures 'A' and 'B' respectively. The said matter was taken to me State Government in revision and the revision application was also dismissed on 1-7-2000, copies of which are annexed at Annexures 'A' and 'B' respectively. The learned Advocate for the petitioner has then drawn attention of the Court to a decision in State of Gujarat v. Patel Raghav Natha, reported in AIR 1969 SC 1297 : [1969 GLR 992 (SC)], and submitted that the respondent No. 1 herein cannot exercise his powers after lapse of 18 years and the said powers must be exercised within a few months and within the reasonable period, as has been laid down in the above-referred case-law by the Hon'ble the Apex Court. 4. Before proceeding with the submissions made by the learned Advocates for the respondents, the facts giving rise to the present petition, right from inception till now, are required to be looked into and which are, as such, not in dispute, read as under: 4.1. It is the case of respondent No. 3 that initially his father had applied for purchasing the land in question, however, the Collector, Bharuch, vide letter No. C.T.S. 5130 dated 3-8-1976 rejected the said application stating the reasons to the effect that the said area of the land was on a public road. Thereafter, for the very same area of land, which was, as stated hereinabove, falling on the public road, the then owner of City Survey Nos. 1140 and 1141 i.e. Hiralal Nathubhai Choksi had made an application dated 20-1-1978 for allotment of the said land in question on lease hold basis and vide Resolution No. 131 dated 30-8-1978, passed by Special General Board of the respondent No. 2-Nagar Palika, Shri Hiralal Nathubhai Nemchand Choksi was allotted the land in question on lease hold basis for a period of ten years. Copy of the said Resolution is produced at Annexure 'R-1', page No. 98. Copy of the said Resolution is produced at Annexure 'R-1', page No. 98. Drawing attention on the said Resolution, the learned Advocate for the respondent No. 3 has submitted that, as reflected from the said Resolution, for the land in question, Hiralal Nathubhai Nemchand Choksi had made an application dated 20-1-1978; the respondent No. 2-Nagar Palika had called for the objections and against the said application, the respondent No. 3-Bhadrakant H. Shah had submitted the written objections making his claim for the very said land and further mentioning that the said land is the road land of the Nagar Palika. It is observed in the said Resolution by the respondent No. 2-Nagar Palika that if the land in question, as requested by Shri Hiralal Nathubhai Nemchand Choksi, be allotted to him, respondent No. 3-Bhadrakant H. Shah would have, as such, no problem for using the way nor do his windows and doors fall on the said land in question and the same is not at all useful to the respondent No. 3, and accordingly, the same be allotted to Shri Hiralal Nathubhai Nemchand Choksi for a period of ten years on lease hold basis. It is pertinent to note at this juncture that the respondent No. 2-Nagar Palika itself has identified the said land in question admeasuring 25' x 3' as 'rasta paikini' i.e. the road land. 4.2. Being aggrieved and dissatisfied with the aforesaid Resolution dated 30-8-1978, respondent No. 3-Bhadrakant H. Shah had preferred the objection application before the respondent No. 1 herein i.e. the Collector, Bharuch District and the respondent No. 1 was pleased to pass the order dated 25-6-1979, whereby, the Resolution dated 30-8-1978, passed by the respondent No. 2-Nagar Palika was kept in abeyance. A copy of the said order dated 25-6-1979, passed by the Collector, District Bharuch, is produced at Annexure 'R-2' at page No. 99. Referring to the said order, it appears that while dealing with the issue, the Collector had heard the parties at length, and over and above, made an enquiry through City Survey, Bharuch, who had informed vide his letter No. C.T.S. 336 dated 7-3-1979 that the land in question is 'rasta pakini' i.e. the road land and looking to the map, which had been prepared by respondent No. 2-Nagar Palika, the land in question falls on the road line. 4.3. 4.3. Against the aforesaid order dated 25-6-1979 passed by the respondent No. 1 herein keeping in abeyance the Resolution dated 30-8-1978 passed by the respondent No. 2-Nagar Palika, the respondent No. 2-Nagar Palika had preferred the appeal before the concerned authority in the State Government and the concerned authority in the State Government was pleased to pass the order dated 2-1-1980, whereby, the appeal preferred by the respondent No. 3 herein came to be rejected and confirmed the order dated 25-6-1979, passed by the respondent No. 1. A copy of the said order dated 2-1-1980 is produced at Annexure 'R-3' at page No. 102. 4.4. In spite of the aforesaid order dated 2-1-1980 by which, the appeal preferred by the respondent No. 3 was rejected, confirming the order dated 25-6-1979 passed by the Collector, District Bharuch, for the reasons best known to the respondent No. 2-Nagar Palika, a Resolution was passed, wherein, name of original owner namely Shri Hiralal Nathulal Choksi came to be mentioned for allotting the land in question on lease hold basis, ignoring and neglecting the order dated 2-1-1980, passed by the concerned authority in the State Government. The respondent No. 2-Nagar Palika had deliberately and with mala fide intention passed the subsequent Resolutions dated 13-3-1980 and 30-10-1980 for allotting the land in question on lease hold basis to the original owner namely Hiralal Nathulal Choksi. (Copy of both the above-referred Resolutions contended to have been produced vide Annexure 'R-3' Colly., but the said copies are not on the record and instead of the said copies, document 'R-3' is right now related to order dated 2-1-1980, referred hereinabove). Moreover, the respondent No. 2-Nagar Palika had further deliberately made sale-deed in favour of the original owner on 18-4-1981, and that too, without obtaining prior permission from the concerned State Government authority and pursuant to communication dated 10-3-1986, issued by the respondent No. 1-Collector, District Bharuch, the concerned City Survey Superintendent had misinterpreted the said letter and on 3-12-1988, the name of original owner namely Hiralal Nathulal Choksi came to be entered in the concerned revenue records and separate Survey No. 4699 was given, which is, as such, the land in question. It is the case of the respondent No. 3 herein that he was not aware about the said aspect and only on 17-4-1998, after getting the copy of the Property Card in respect of the lands bearing Survey Nos. 1140, 1141 and 4699, he came to know of the aforesaid fact, and thereafter, immediately, he applied for the copy of the order passed by the respondent No. 1-Collector, Bharuch District and the respondent No. 3 was informed by the office of the Collector, District Bharuch that the Collector, District Bharuch had not passed any order as to allotting the land in question by way of sale-deed to the original owner namely Hiralal Nathulal Choksi. Thus, referring to the aforesaid circumstances, the learned Advocate for the respondent No. 3 has submitted that it seems that said Hiralal Nathulal Choksi was hand-in-glove with City Survey Superintendent, and therefore, deliberately he (Hiralal Nathulal Choksi) had arranged for sale-deed in his favour in collusion with the concerned official of respondent No. 2-Nagar Palika, that too, without prior permission of the concerned authority in the State Government and pursuant to the Sale-deed, necessary entries also came to be entered in the revenue records and pursuant to the said entry, Hiralal Nathulal Choksi had made unauthorized construction of otta and stairs on the land in question. 4.5. The respondent No. 2-Nagar Palika had executed a Sale-deed in favour of the original owner namely Shri Hiralal Nathulal Choksi in the year 1981 before the order dated 7-9-1983 came to be passed by the respondent No. 1-Collector, Bharuch District. It is submitted that pursuant to order dated 10-3-1986, passed by the respondent No. 1-Collector, Bharuch District, by misinterpreting the same, separate entry for the aforesaid disputed land came to be made i.e. separate Survey No. 4699 in the concerned revenue record. It is further submitted that by order dated 18-6-1997 passed by the respondent No. 1, the unauthorized construction of otta was ordered to be demolished. The respondent No. 3 herein had then preferred the revision application before the Deputy Collector regarding entry made in respect of the disputed lands bearing Survey Nos. It is further submitted that by order dated 18-6-1997 passed by the respondent No. 1, the unauthorized construction of otta was ordered to be demolished. The respondent No. 3 herein had then preferred the revision application before the Deputy Collector regarding entry made in respect of the disputed lands bearing Survey Nos. 1140, 1141 and 4699 in the revenue records in favour of the original owner i.e. Hiralal Nathubhai Choksi and after giving sufficient opportunity and on merits, the Deputy Collector, Bharuch District had allowed the said revision vide order dated 30-4-1999 holding that by misinterpreting the letter dated 10-3-1986, issued by the respondent No. 1-Collector, Bharuch District, the City Survey Superintendent had made the entry regarding sales-deed in favour of the original owner namely Hiralal Nathubhai Choksi, and therefore, the said entry came to be cancelled, and thereafter, the land bearing Survey No. 4699 came to be acquired by following the provisions of the Bombay Land Revenue Code, 1879 (for short, 'B.L.R.C.'). It is not under dispute that the present petitioner had purchased the land in question on 4-2-1988 and the orders passed against the original owner are also binding to the present petitioner, which is the submission made by the learned Advocate for the respondent No. 3. 4.6. It is to be noted that against the present petitioner as well as against the original owner namely Hiralal Nathubhai Choksi, the respondent No. 3 herein had filed the appeal being No. 1 of 1999 under the provisions of Sec. 258 of the Gujarat Muni. Act, 1963 before the respondent No. 1-Collector, Bharuch District, which has been decided vide order dated 1-3-2000, whereby, implementation of both the Resolutions viz. Resolution No. 346 dated 13-3-1980 as well as the Resolution No. 182 dated 30-10-1980 were cancelled and the Collector was pleased to direct the City Survey Superintendent to cancel the entry, which was made in the Property Card in respect of the land bearing Survey No. 4699 and the respondent No. 2-Nagar Palika was directed to remove the unauthorized construction made upon the above-referred land in question. 4.7. 4.7. It is also the fact that the present petitioner had also preferred an appeal being No. 11 of 1999 before the Collector, Bharuch District i.e. the respondent No. 1 herein, under the provisions of Sec. 203 of the Code against the order dated 30-4-1999, passed by the Deputy Collector, Bharuch District, which was rejected vide order dated 22-3-2000. Against the said order dated 22-3-2000, the petitioner herein had preferred a revision application under the provisions of Sec. 211 of the Code before the Revenue Department at Ahmedabad and vide order dated 12-2-2001, the said revision application was rejected and confirmed the order dated 22-3-2000, passed by the Collector, Bharuch District. Moreover, the present petitioner had also preferred Revision Application dated 4-4-2001 before the Deputy Secretary, Home Department, Sachivalaya, State of Gujarat being revision application No. 19 of 2000, challenging the order dated 1-3-2000, passed in appeal No. 1 of 1999 by the respondent No. 1 herein-Collector, Bharuch District. The said revision application was rejected by the Deputy Secretary vide order dated 1-7-2000. 4.8. The learned Advocate for the respondent No. 3 has vehemently submitted that the petitioner has deliberately misled and misguided the Court and has not submitted the true, correct and complete facts in this petition and has also suppressed the material facts, and accordingly, this petition deserves to be dismissed, more particularly, when the respondent No. 1-Collector, Bharuch District, had rejected the application made by the petitioner herein for regularisation of the alleged unauthorized construction vide order dated 24-1-2002. 5. Before proceeding with the rival submissions made by the learned Advocates for the parties, certain earlier orders passed in earlier petitions are required to be perused. 5.1. The petitioner herein had preferred Special Civil Application No. 1230 of 2001 and vide order dated 19-2-2001, it has been observed as under: "The learned Counsel for the petitioner makes a statement that the petitioner has subsequent to the impugned orders of the Collector and the Deputy Secretary, which are at Annexures-A and B to the petition respectively, made a representation for regularisation of the land in question. It is further submitted that me petitioner proposes to pursue that representation and obtain an order, and in me meantime, the construction, if any, on me land in question, need not be demolished or removed. It is further submitted that me petitioner proposes to pursue that representation and obtain an order, and in me meantime, the construction, if any, on me land in question, need not be demolished or removed. It is also stated that me construction on the disputed land is only an otta and steps abutting on the road. In me facts and circumstances, an order can be made protecting the said construction and possession by the petitioner for a period of two weeks without notice to the respondents as me petitioner proposes to withdraw this petition with necessary observations. Accordingly, me petition is permitted to be withdrawn with the observation that the representation for regularisation that the petitioner might have submitted or may make now will be decided by me appropriate authority as expeditiously as practicable; and in me meantime, for a period of two weeks from today, me possession of the petitioner of the land in dispute and me structure mentioned hereinabove may not be disturbed. The petition stands disposed accordingly. Direct Service is permitted." 5.2. The petitioner had then preferred the Special Civil Application No. 2836 of 2001. It appears that the respondent No. 2 herein-Ankleshwar Nagar Palika had also preferred the Special Civil Application No. 3077 of 2001 and by way of common judgment and order dated 30-10-2001, this Court was pleased to observe in Para 8 as under: "8. Therefore, in light of the fact that the petitioner has been in continued long possession of the land in question and he is rightly or wrongly enjoying such possession of the land in question since 1981 on the basis of the sale-deed, it is directed to me District Collector, Bharuch to examine and decide me representation which has been submitted by me petitioner dated 20m March, 2001 within period of two months from the date of receiving the certified copy of this order and to pass appropriate order in accordance with law. The respondent-Collector is also directed to communicate such decision to me petitioner. During the pendency of this representation, it is directed to the respondents to maintain status quo in respect of the disputed land in question. It is also observed that in event of any order that may be passed by the District Collector, Bharuch, if adverse to me petitioner, the same can be challenged by me petitioner before appropriate forum in accordance with law. It is also observed that in event of any order that may be passed by the District Collector, Bharuch, if adverse to me petitioner, the same can be challenged by me petitioner before appropriate forum in accordance with law. In light of above observations and directions, both these petitions stand disposed of accordingly. Rule issued in both these petitions stand discharged. Ad-interim relief earlier granted by this Court shall stand vacated. Directions issued by this Court will remain in force till the decision is taken by the Respondent-District Collector, Bharuch. No order as to costs. Direct Service is permitted." 5.3. Referring to the document at Annexure 'A', a copy of the order dated 24-1-2002, passed by the respondent No. 1 herein-Collector, Bharuch District, it appears that the application made by the present petitioner for regularisation of the alleged unauthorised construction was rejected after holding that the land in question is the road land and the same may create hurdles to the traffic in future, and accordingly, both the applications had been filed by the respondent No. 1 herein-Collector, Bharuch District, informing that they should remove the said unauthorized construction and thereafter, the petitioner herein has preferred the present petition on 11-4-2002, challenging the aforesaid orders, annexed by her vide Annexures 'A', 'B', 'E', 'F', 'G' and 'I' to the petition. 6. Mr. B.S. Patel, learned Advocate for the respondent No. 2-Nagar Palika vehemently submitted that day-in and day-out, the Nagar Palika enters into the leases of immovable properties for a term exceeding 10 years and also at times, sells the said immovable properties under Sec. 146 read with Sec. 65 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as 'the said Act') and considering the said aspect, the action of transfer of the land in question of the respondent No. 2, as narrated by the petitioner herein, should be allowed. He further submitted that, as such, he is adopting the submissions made by the learned Advocate for the petitioner and this Court should allow the petition, as prayed for, by the petitioner. 6.1. Mr. He further submitted that, as such, he is adopting the submissions made by the learned Advocate for the petitioner and this Court should allow the petition, as prayed for, by the petitioner. 6.1. Mr. N.K. Majmudar, learned Advocate for the respondent No. 3, has drawn attention of the Court on the affidavit-in-reply filed by the respondent No. 3 dated 7-12-2004 and the documents annexed thereto and submitted that considering the fact that the road land, which is the subject-matter of the present petition, was initially transferred by way of lease agreement and thereafter sold the same by Registered sale-deed in collusion by the respondent No. 2 to Hiralal Nathubhai Choksi and in turn to the present petitioner and considering the entire conduct of said Hiralal Nathubhai Choksi and later on the present petitioner, as narrated at length in the affidavit-in-reply referred hereinabove, he requested to dismiss the present petition awarding special cost, more particularly, because as such, this is the third round of litigation, which has been initiated with the mala fide intention and which is a deliberate attempt to prolong this litigation at any cost. 7. During the course of submissions, the learned Advocate for the respondent No. 2 has taken the stand that since the municipality had followed the procedure for converting a part of the public street into a private land under Sec. 146(1) of the said Act, the Collector was not justified in passing the impugned order. At this juncture, the learned Assistant Government Pleader pointed out that when any public street is to be converted into a private land, previous permission of the State Government or the Collector is necessary in view of the provisions of sub-sec. (2) of Sec. 65 of the said Act. It is important to note that this very submission has been made by the respondent No. 2 hereinbefore this Court on 10-5-2002 and this Court has considered the same observing that the said controversy has already been concluded by this Court's order dated 11-3-2002, passed in Special Civil Application No. 9832 of 2000. The relevant portion of the said order, more particularly, Para 4 of the order dated 10-5-2002, passed in the present petition reads as under: "4. The learned Counsel for the parties have addressed the Court on the question of interpretation of the provisions of sub-sec. (2) of Sec. 65. The relevant portion of the said order, more particularly, Para 4 of the order dated 10-5-2002, passed in the present petition reads as under: "4. The learned Counsel for the parties have addressed the Court on the question of interpretation of the provisions of sub-sec. (2) of Sec. 65. This controversy has already been concluded by this Court's order dated 11-3-2002 in Special Civil Application No. 9832 of 2000 wherein it has been held that the three contingencies contemplated by sub-sec. (2) of Sec. 65 of the Act are not cumulative, but are independent and separate contingencies, and therefore, previous permission of the Collector is required to be obtained by the Municipality for each of the three contingencies i.e. when a public street is to be converted into a private land irrespective of the value of land. Similarly, when any land needs to be given on lease for a period of 10 years, the permission is required to be obtained irrespective of the value of the land. So also where any land of the value exceeding Rs. 1 lac is to be sold or otherwise transferred, previous permission of the State Government/Collector is required to be obtained; even if such land is to be given on lease for a period less than 10 years. Hence, the resolution, if any, of the Bharuch Municipality for converting a part of the public street into private land without the permission of the State Government or the Collector cannot be treated as legal." 8.1. In the present petition, the learned Advocate for the petitioner has placed sole reliance on Rule 53 of the Land Revenue Rules, as referred hereinabove for the reason that the land in question is not the road land and also submitted that if this Court comes to the conclusion that the land in question is the road land, then, the petitioner herein has no case at all. In light of the above submission, I have carefully perused aforesaid Rule 53. It is specifically mentioned in it that this reservation does not apply to small pieces of ground lying between the houses and road-way in an irregular street or road of varying width, which should be recognized as forming part of the street and vesting in the municipality. In light of the above submission, I have carefully perused aforesaid Rule 53. It is specifically mentioned in it that this reservation does not apply to small pieces of ground lying between the houses and road-way in an irregular street or road of varying width, which should be recognized as forming part of the street and vesting in the municipality. If the entire evidence forthcoming on the record are gone through, it is clear that the land in question is not a small piece of ground lying between the houses and the road- way, in an irregular street or road of varying width. Under the circumstances, in my view, the said Rule is not applicable to the case on hand for the reason that the documents namely, Annexure 'R-l', which is the Resolution No. 131 dated 30-8-1978, Annexure 'R-2', which is the order dated 25-6-1979, passed by the Collector, Bharuch District and the Annexure 'R-3', which is the order dated 2-1-1980, passed by the Deputy Secretary, Panchayat, Urban Housing and Urban Development Department as well as the Registered sale-deed dated 18-4-1981, executed by the respondent No. 2-Nagar Palika in favour of Hiralal Nathubhai Choksi by which, the land in question has been sold as well as the last document dated 24-1-2002, which is the decision taken by the Collector, Bharuch District rejecting the submission made by the petitioner herein for regularisation of the alleged unauthorized construction and possession, as discussed at length hereinabove, would suggest that the said land is the road land i.e. 'rasta paikini' and the same is not lying between the houses and the road-way in an irregular street or road of varying width, as has been argued by the learned Advocate for the petitioner. Under the circumstances, if at any point of time, the said land, which is, as such, the public street, is needed to be converted into a private land, previous permission of the State Government or the Collector is absolutely necessary in view of me provisions of sub-sec. (2) of Sec. 65 of the said Act. Admittedly, in the case on hand, the said permission has not been obtained, and hence, the present petition deserves to be dismissed. (2) of Sec. 65 of the said Act. Admittedly, in the case on hand, the said permission has not been obtained, and hence, the present petition deserves to be dismissed. Before passing the final order as to dismissal, certain important facts, which have emerged from the record, are required to be dealt with to see the conduct of the members of the respondent No. 2-Nagar Palika, who have apparently and flagrantly violated the orders passed earlier, knowingly, deliberately and with an ulterior motive in transferring the land in question by way of lease, and then sold the same in spite of the fact that prior to execution of the Registered sale-deed, the Collector had already suspended the Resolutions passed by the General Board of the respondent No. 2-Nagar Palika and though further direction was given to the respondent No. 2-Nagar Palika to see that the construction, which has been made on the land in question, be removed as early as possible. 8.2. At this juncture, it is required to go through Paras 5.1 and 5.2 as well as 5.3 of this judgment. The Para 5.1 is related to Resolution No. 131 dated 30-8-1978, Annexure 'R-l', passed by the General Board of the respondent No. 2-Nagar Palika, by which, the land in question was resolved to be allotted to Hiralal Nathubhai Choksi by way of lease for a period of 10 years. As discussed in Para 5.2, which is about the order dated 25-6-1979 passed by me Collector, Bharuch District, Annexure 'R-2', it is clear that after thorough examination by the City Survey office on getting up-to-date documentary evidence regarding the land in question and hearing the parties, the Collector had passed the reasoned order on merits under Sec. 258(1) of the said Act, whereby Resolution No. 131 dated 30-8-1978 was ordered to be suspended and the respondent No. 2-Nagar Palika was directed to remove the construction, which has been carried out on the land in question. As referred in Para 5.3 hereinabove and again referring the document at Annexure 'R-3', which is copy of the order dated 2-1-1980, passed by the Deputy Secretary, Panchayat, Urban Housing and Urban Development Department, it is clarified that under Sec. 258(3) of the said Act, the President of the respondent No. 2-Nagar Palika had preferred the appeal against the aforesaid order dated 25-6-1979, passed by the Collector, which had been dismissed by the Deputy Secretary and thus, as such, on 2-1-1980, the said order dated 25-6-1979 has attained the finality because nothing has come on the record to show that the said order dated 2-1-1980 has been challenged by anyone before any Court of law. In spite of the aforesaid order of removal of construction on the land in question, it is surprising that the General Board of the respondent No. 2-Nagar Palika appears to have passed another Resolution bearing No. 346 dated 13-3-1980 allotting the land in question to Hiralal Nathubhai Choksi by way of lease for 9 years 11 months and 29 days, as mentioned on page No. 2 of the copy of the Registered sale-deed, executed by the respondent No. 2-Nagar Palika on 18-4-1981 in favour of Hiralal Nathubhai Choksi, who has later on sold his house along with the land in question to the petitioner herein. Referring to the said page No. 2 of the aforesaid Registered sale-deed, it further appears that the General Board has then passed the Resolution No. 182 dated 30-1-1980 and decided to sell the land in question to Hiralal Nathubhai Choksi, and accordingly, on 18-4-1981, executed the Registered sale-deed. It is pertinent to note at this juncture that in the aforesaid Registered sale-deed dated 18-4-1981, not a single word has been mentioned regarding the earlier Resolution No. 131 dated 30-8-1978 and two orders dated 25-6-1979, passed by the Collector, Bharuch District and 2-1-1980, passed by the Deputy Secretary, who have, as such, ordered to remove the construction made on the land in question for the reason that the said land is a public street i.e. the road land i.e. 'rasta paikini', holding that the respondent No. 2-Nagar Palika has no right at all to allot the land to a third party by way of a lease-deed or sell the same by way of executing a Registered sale-deed, as aforesaid. Rest of the conduct of the respondent No. 2-Nagar Palika and Hiralal Nathubhai Choksi, as discussed at length hereinabove and with a view not to burden the record any more, it is not being repeated. However, it is clear that, again by misinterpreting order of the Collector, the revenue City Survey Entry No. 4699 has been effected qua the land in question by way of issuing the Property Card and the respondent No. 3 herein has initiated another proceeding for cancellation of the said entry, as discussed hereinabove at length. 8.3. In light of the above discussion, if Para 2 of the petition is perused, it can be seen that the petitioner has challenged the order dated 11-3-2002, passed by the respondent No. 2-Nagar Palika, mentioning that the Collector has rejected the petitioner's application for regularisation of encroachment. From the above discussed facts, it is clear that, as such, the land in question, was not encroached by Hiralal Nathubhai Choksi, but the same has been sold with a calculative move and as a pre-plan by the members of the respondent No. 2-Nagar Palika to said Hiralal Nathubhai Choksi, who is not a party to the present petition as he has already sold the land in question to the present petitioner, and thus, as such, there is no question of regularisation of alleged encroachment has arisen for the reasons discussed above. It is pertinent to note that the respondent No. 3 herein was vigilant right from the beginning i.e. prior to passing of the Resolution No. 131 dated 30-8-1978 till date as is clear from said resolution that he had lodged the objections, which had been called for by the respondent No. 2-Nagar Palika and he is made to fight the said battle for no reason and naturally by incurring expenses for a long fight. Under the aforesaid circumstances, he is required to be compensated by the respondent No. 2-Nagar Palika as well as Hiralal Nathubhai Choksi but as Hiralal Nathubhai Choksi is not a party to the present proceeding, in my view, the respondent No. 2-Nagar Palika, which has deliberately, knowingly and with an ulterior motive entered into me aforesaid transaction, so far as the land in question is concerned, is liable to compensate the respondent No. 3. 8.4. 8.4. In view of the aforesaid detailed discussion, in the considered opinion of the Court, the decision in Patel Raghav Natha, AIR 1969 SC 1297 : [1969 GLR 992 (SC)] as relied on by the petitioner, is not applicable to the case on hand. In the above backdrop, the present petition deserves to be dismissed and is, accordingly dismissed. Rule is discharged. Ad- interim relief, if any, shall stand vacated forthwith. 8.5. Further, it is directed that the respondent No. 2-Nagar Palika shall pay a special cost of Rs. 50,000/- (Rupees Fifty thousand only) to the respondent No. 3 herein-Bhadrakant H. Shah for dragging him in the litigation. On depositing the said amount, the respondent No. 3 is at liberty to withdraw the same after following due procedure. FURTHER ORDER: 1. After pronouncement, Mr. S.V. Parmar, learned Advocate for the petitioner, requested to stay the implementation of the present judgment and order as he is desirous of challenging the same before the higher forum. 2. Considering the facts and circumstances as discussed in the judgment and order, I do not find any substance in the request made by the learned Advocate for the petitioner, and hence, the same is rejected.