1. In view of order dated 13.3.2017 passed in Civil Application No. 1282 of 2017 in Special Civil Application No. 142 of 2001, both these Special Civil Applications are listed and heard together.
FACTS OF SPECIAL CIVIL APPLICATION No. 142 of 2001
2. Being aggrieved and dissatisfied with the order passed by learned SSRD dated 13/16.10.2001, the petitioner has preferred Special Civil Application No. 142 of 2001 under Article 226 of the Constitution of India for the following reliefs:-
"10. …………
(a) Be pleased to admit this petition;
(b) Be pleased to issue appropriate writ, order or direction in the nature of mandamus quashing and setting aside the order passed by the respondent no. 1 dated 13-16/10/2000 and direct the respondent Village Panchayat to refund the amount taken from 16 persons and hold the auction for sale of plot again in consultation with the competent authority pursuant to the order passed by the District Panchayat on 25-10-1999 after giving due and adequate publicity of auction proceedings amongst village people;
(c) …………
(d) ……….."
3. The short facts giving rise to the present petition are as under:-
3.1 That Notification was issued on 30.1.1999 for auction of 16 plots of Survey No. 94/2 belonging to Village Timbdi. On 21.3.1999, publicity regarding auction was made. On 22.3.1999, within a day, auction proceedings took place. The upset price was fixed at Rs. 15 per sq.mtr. And plots were given to 15 members by taking Rs. 16.50 ps. per sq.mtr. In fact, the land is touching national highway and it can easily fetch Rs. 50,000/- to 60,000/- per plot which is approximately 200 sq.mtr. in size. It is alleged that the Talati-cum-mantri, in connivance with Deputy Sarpanch, without adequate publicity of the plots belonging to Panchayat held auction of plots amongst limited number of persons. That 15 members of three families alone could bid and later on the same was finalized in their favour by accepting meager price of Rs. 1500 to 1600 per plot. That on 28.4.1999, when village people came to know about sale of panchayat plots, they made representation to competent authority. That on 3.8.1999 and 21.9.1999, Sarpanch and members of Village Panchayat submitted their representation and affidavit respectively to the Taluka Development Officer, Morbi, and requested him to quash and set aside the auction proceedings by declaring the same as null and void.
3.2 That District Panchayat called for the record and proceedings from the office of Village Panchayat and Taluka Panchayat and examined all the documents and came to the conclusion that entire proceedings of 16 plots is undertaken without healthy competition amongst the bidders and thereby declared the proceedings as irregular.
3.3 That successful bidders filed Civil Suit No. 345 of 199 to 355 of 1999 in the Court of 2nd Civil Judge at Morbi and prayed for stay of the order passed on 25.10.1999, which prayer came to be rejected by learned Civil Judge. That respondent no. 6 only filed revision petition under Section 211 of the Bombay Land Revenue Code before learned SSRD, who vide his order dated 13.10.2000 set aside the order passed by District Panchayat on 25.10.1999.
3.4 According to the petitioners, they came to know about said order around 20.12.2000 and later on decided to file present petition.
3.5 The petitioners have contended that entire auction proceeding was not proper and no adequate publicity was made regarding auction and due to that other persons could not take part in the auction. It is also contended that respondent no. 6 has suppressed the fact of filing of Suit before learned Civil Court in a revision preferred before learned SSRD. It is also contended that the petitioners were not joined in the suit proceedings and the impugned order was passed. It is also contended that the plots were sold at throw away price, affecting the revenue of the panchayat. It is also contended that there is no construction made on the plots and only 1/4th price is paid to Panchayat, which may be directed to be refunded to concerned persons. It is contended that their right to bid is taken away by keeping them in dark. It is also contended that respondent no. 6 ought to have filed appeal before the Development Commissioner under the Panchayat Act and no revision was maintainable under Section 211 of the Bombay Land Revenue Code against the order passed by District Panchayat. On all these grounds, the petitioners have prayed to grant the relief as prayed for.
4. This petition has been resisted by respondent no. 6 by filing reply. The main ground raised by respondent no. 6 is that the petitioners have no locus standi as they were not party before learned SSRD. It is also contended that the petitioners have not participated in the auction for sale of 16 plots by Village Panchayat and they have not raised grievance at the time of holding of auction. It is also contended that plotting of land of Gamtal of village Timbdi was approved by Deputy Collector vide order dated 3.6.1986 and, as per lay out plan, the land of Survey No. 92 paiki was sub-divided into small plots ranging from 100 to 200 sq.mtrs. and same were situated in the periphery of an industrial zone of stone crushing. He has also contended that because of stone crushing industry in the vicinity of the plots, there were no buyers for the plots for residential purpose. He has also contended that some of the plots of Survey No. 94 paiki were initially auctioned in the year 1990-91 and Sanad was also issued. He has produced one of such Sanad of plot no. 64 showing that it was sold for consideration of Rs. 2074/- in the year 1990 and that plot was admeasuring 203.81 sq.mtrs.
4.1. Respondent no. 6 has also contended that Taluka Development Officer, Morbi, had issued notification dated 30.1.1999 for auction of 16 plots of Survey No. 94/2 and, as per the Notification, the auction was to be held on 22.3.1999 and upset price of the plot was fixed at Rs. 15 per sq.mtr. That prior to auction the village panchayat widely published auction proceedings and auction was held on 22.3.1999 and various parties including himself had participated in the auction proceedings and at the time of auction of plots, Sarpanch of Village Panchayat as well as Circle Inspector representing Taluka Panchayat had remained present and submitted the report that auction has been carried out in accordance with law and procedure was duly followed. He has contended that after auction proceedings, successful bidders have deposited the amount of consideration in respect of the plots in question and Taluka Development Officer, Morbi, vide his order dated 19.8.1999 approved auction on certain terms and conditions and possession was handed over on 21.8.1999. He has contended that contract for the sale of plot is concluded between them and the State Government and it cannot be cancelled unilaterally at the instance of third party and competent Civil Court has jurisdiction to cancel or rescind the concluded contract.
4.2. Respondent no. 6 has denied the allegations of the petitioners regarding allotment of plots to 15 members from amongst three families. He has submitted that successful bidders are hailing from same village and belonging to backward class families having same surnames and majority of the owners and occupiers of Survey No. 94 are backward class community. He has submitted that District Development Officer, Rajkot, without affording any opportunity of hearing to successful bidders unilaterally and arbitrarily cancelled auction vide order dated 25.10.1999, even without issuing show cause notice to them and, therefore, he had preferred revision before learned SSRD, who has allowed the same and quashed and set aside the order of District Development Officer.
5. Petitioner No. 2 herein has filed affidavit-in-rejoinder, reiterating the contentions raised in the petition and negativing the objections raised by respondent no. 6.
FACTS OF SPECIAL CIVIL APPLICATION No. 7375 of 2016
6. By filing this petition, the petitioners have mainly prayed as under:-
"18. …………..
(a) The Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus holding that the government karaba land bearing Revenue Survey No. 304 admeasuring Acres 502 and 15 gunthas out of which 90000 sq.ft. i.e. to say 10000 sq.yds. of land is leased to the petitioners on permanent basis and that land bearing Survey No. 304/1 is located in the boundaries of the village panchayat Pipli and be further pleased to hold and declare that land bearing Survey No. 94/2 is located on the other side of National highway and beyond the boundaries of the Pipli village panchayat and that therefore, the plotting and disposal of the plot, which is undertaken by respondent No. 3, is absolutely illegal and the layout plan which is made whereby the land of the petitioners is encroached be also declared as illegal and void and the same be quashed and set aside.
…………………."
7. According to the petitioners of this petition, they have been granted quarry for crushing stones on land of Survey No. 304/1 admeasuring Acres 502 and 15 gunthas, out of which land admeasuring 300 ft. X 300 ft. i.e. 90,000 sq.mtrs. equivalent to 10,000 sq.yds. is granted. According to the petitioners, this lease was granted in 1966-67 for initial period of two years and, thereafter, it has been made permanent. That the leased land is at a distance of 300 ft. from national highway. It is stated that, as per revenue records, the petitioner is in possession of land and he has not made any encroachment over any of the lands. It is stated that both the lands fall under Gram Panchayat-Pipli. Sarpanch of Pipli Gram Panchayat is trying to remove them from the land alleging that the petitioner has encroached upon the land of Timbdi Gram Panchayat.
7.1. They have prepared a map in the year 1992-93, which shows location of land, which was given to them. It is stated that as the dispute arose, the petitioner again did measurement of revenue Survey No. 94/2 as well as revenue Survey No. 304/1 and joint measurement sheet dated 23.4.2015 was also obtained by the petitioner. It is his contention that in the said map, Survey No. 94/2 which is an extended limit of Timbdi Gram Panchayat, admeasuring Acre 4-13 gunthas and this expansion of Gamtal was sanctioned by Deputy Collector, Morbi, vide his order No. 1085 dated 16.8.1986. It is contended that print out of map of the land used was obtained by the petitioner, wherein the measurement and area located on the side of Survey No. 94/2 and Survey No. 304/1 paiki is distinctly stated and in the government record also it is shown that plot No. 304/1 paiki is meant and used for stone crushing.
7.2. It is contended that extension of Gamtal in revenue Survey No. 94/2 admeasuring 4 Acres and 13 gunthas, Timbdi Gram Panchayat prepared the lay out plan, which was sent to Taluka Development Officer, Morbi, for approval on 22.2.1991 without inspecting site. The said plan was approved on 21.3.1999. Revised lay out plan was prepared and again sent to Taluka Development Officer, Morbi, for approval and on 18.8.1999 approval was given. According to the petitioner, through mistake on the part of Timbdi Gram Panchayat, respondent no. 3, revised plan was wrongly prepared and though the land is forming part of revenue Survey No. 304/p of Village Panchayat Pipli, even then without verifying site, in the lay out plan, which was prepared, the land of the petitioners has been wrongly shown in the map and by encroaching upon the land, only on paper the plotting has been done.
7.3. According to the petitioners, land which the petitioner has bought is at a distance of 300 ft. away from national highway and the plotting of 300 ft. X 300 ft. granted by original panchayat is on the same side but Timbdi Gram Panchayat has shown plot at a distance of 160 ft. from the middle line of national highway and plotting is done therein. According to the petitioner, land which he is holding belongs to Pipli Gram Panchayat and he is in possession since long.
7.4. The petitioner has also contended that new Gamtal of Timbdi is in the Kharaba land of revenue Survey No. 94 paiki and is located on the other side of the land, which is granted to the petitioner and the land of the petitioner is located within the limits of Pipli Gram Panchayat. According to him, through oversight, plotting has been done in the land occupied by the petitioner and the respondent herein has no authority to interfere with his possession. On this ground, he has prayed to grant the reliefs as prayed for.
8. This petition has been resisted by respondent no. 3 - Timbdi Gram Panchayat by filing affidavit-in-reply, wherein it has narrated the factum of approval of new Gamtal of Survey No. 94/2 by Deputy Collector, Morbi, way back in 1986 and possession thereof being handed over by Mamlatdar to Gram Panchayat of Timbdi. It is also contended that lay out plan was also sanctioned by Taluka Development Officer in 1999 and as per the lay out plan, plots of 100 yards were given to the persons under the scheme on auction basis and 40 to 42 were allotted the plots and about 20 to 25 families are residing thereon.
8.1. It is also contended that in pursuance of the second revised plan in 1999, the Panchayat had disposed of 16 plots by way of auction and Sanad was also issued in favour of the persons, who have purchased the plot in question. It is also contended that in the sanctioned plan about 78 plots were made and out of which 58 to 60 plots were already made and 40 houses are constructed thereon and people are residing therein. According to the contention of this affidavit, development of plots was made way back from 1986 and respective families are residing in this place since 1986 and 1999.
8.2. It is also contended that the respondent do not intend to enter into disputed question of fact and it was intended to remove all those plot holders, who are residing there since 1986 and 999, without joining them as party. It is also contended that if the plans of the petitioner can be seen, the place which is approved for grant of land for stone crushing unit is at Village Pipli, Survey No. 304/1 and approximately about 300 ft. away from national highway and if Gamtal is seen the land of Timbdi Gram Panchayat is about 146 ft. away from center point of national highway, which is land bearing Survey No. 94/2. It is also contended that land of petitioner is located at a distant site of Village Pipli, land Survey No. 304/1 and at present, the petitioner is on the western side of Village-Pipli and about 208 ft. from center point of national highway. He has referred to Special Civil Application No. 142 of 2001. He has submitted that the petitioners are trying to encroach upon the land of Timbdi Gram Panchayat and, therefore, the petition may be dismissed. It is also contended that the question raised by the petitioner is disputed question of fact and, therefore, on this ground also, petition may be dismissed.
9. The petitioner has filed affidavit in rejoinder, wherein also he has reiterated the facts of the petition and denied the contentions raised by Timbdi Gram Panchayat. In addition to it, he has also submitted that it seems that Deputy Collector, Morbi, had prepared new Gamtal of Survey No. 94/2 and instead of survey No. 94/2, which is existing within the limits of Timbdi Gram Panchayat, that land is super-imposed upon the land of the petitioner bearing Survey No. 304/1 and that is how the mistake is committed and encroachment is made by respondent no. 3 on the land of respondent no. 2, which in turn is granted to the petitioner.
10. Heard Mr. P.M. Patel, learned advocate for the petitioners of Special Civil Application No. 142 of 2001, learned advocate Mr. S.P. Majmudar for respondent nos. 6 to 18 and learned AGP, Mr. Kanara for the State in both the petitions, learned Senior Counsel Mr. Gandhi for respondent no. 19 in SCA No. 142 of 2001 and for the petitioner of Special Civil Application No. 7375 of 2016 and Mr. H.S. Munshaw, learned advocate for respondent no. 7 in Special Civil Application No. 7375 of 2016. Perused the material placed on record including the written submissions by respondent no. 7-Taluka Panchayat in Special Civil Application No. 7375 of 2016 and also considered the decisions cited at bar.
11. Mr. Patel, learned advocate for the petitioner of Special Civil Application No. 142 of 2001 submitted that same facts, which are narrated in the memo of petition. He has submitted that entire auction was carried out behind the back of people of Village-Timbdi. He has also submitted that plots were auctioned without proper publicity and only three families have got almost all the plots in the said auction. Mr. Patel also submitted that price of the plots fetched in such auction is very low considering the fact that the plots are abutting national highway. He has submitted that against such auction, representations were made by Sarpanch and villagers to the authority for cancellation of entire auction. He also submitted that DDO has rightly cancelled said auction proceedings. He has submitted that said order of DDO came to be challenged by respondent no. 6 only by filing revision before learned SSRD and, in that proceedings, he has suppressed the fact of filing of suit by successful bidders in the Civil Courts, wherein they were unable to get any injunction and ultimately suit came to be withdrawn.
11.1. Learned advocate Mr. Patel has also submitted that since the order of DDO was to be challenged as per the provisions of the Panchayat Act, the order needs to be challenged before Development Commissioner, who is appellate authority and the Secretary, Revenue Department, has no authority over the order passed by DDO under the Panchayat Act. He has submitted that on this technical ground, the order of SSRD deserves to be quashed and set aside. He has submitted that the impugned order passed under Section 211 of the Gujarat Land Revenue Code is without jurisdiction and, therefore, bad in law. Learned advocate Mr. Patel has referred to Sections 342, 345 and 259 of the Gujarat Panchayats Act and has submitted that considering these provisions, remedy available was to file appropriate appeal before Development Commissioner and not to learned SSRD under Section 211 of the Gujarat Land Revenue Code. Mr. Patel also submitted that the contention in other petition being Special Civil Application No. 7375 of 2016 is that the land in question is of Village-Pipli and not of Village-Timbdi but as per the sanctioned Gamtal, the land in question belongs to Village-Timbdi and, therefore, the contention raised by the petitioners of other petition is devoid of merits. He has submitted that entire exercise of selling the plots was done in closed doors and price was also on lower side. He has submitted that, in the present petition, reply has been filed by respondent no. 6 only and no reply is filed by others controverting the allegations of the petitioners. He has submitted that the contentions raised by private respondent has already been dealt with by the petitioner by filing rejoinder affidavit and reiterating the contentions raised in the petition. While relying upon paragraph 11 of the decision in the case of Viram Vishram Gadhvi v. State of Gujarat Thro' S.N. Dave reported in 2005 (1) GLH 232, to the following effect, he has prayed to allow Special Civil Application No. 142 of 2001.
"11. Therefore, it appears that the Officer who exercised the power on behalf of the State Government under Section 259 is not right in observing that there is no jurisdiction with the State Government or with him to hear the revision in view of the notification dated 26.7.1994, for which the powers are delegated to the Development Commissioner. As such in view of the aforesaid observation, it appears that the State Government or the Officer of the State Government who is assigned with the power under Section 259 of the Act has jurisdiction to hear the revision under Section 259 of the Act against any order passed by the DDO under Section 249 of the Act, whereby the resolution is suspended or ought to have been suspended or any grievance is raised in respect to illegality or propriety of the order passed by the DDO."
12. Per contra, learned AGP Mr. Kanara for the respondent-State has submitted that learned SSRD has only set aside the order on the ground that revision was heard ex parte by District Development Officer. He also submitted that there are two notifications issued by the Government wherein DDO under the Panchayat Act is treated as Collector and has also been treated as revenue authority. He has submitted that, therefore, there is no illegality committed by SSRD in entertaining revision filed under Section 211 of the Bombay Land Revenue Code and that point of jurisdiction raised by the petitioner is devoid of merits. Accordingly, he has prayed to dismiss present petition.
13. Learned advocate for private respondent has vehemently submitted that entire sale transaction was conducted in proper manner and there was no illegality committed in the said proceedings. It is also submitted that petition has been filed with an ulterior motive and it is in the form of Public Interest Litigation. It is also submitted that learned SSRD has properly set aside the order of DDO and no illegality has been committed in passing such order. He further submitted that his clients are successful bidders and possession of the plots was given to them, therefore, this petition may be dismissed and their rights may be protected.
14. In rejoinder, Mr. Patel learned advocate for the petitioner submitted that the land in question is Kharaba land. He has submitted that entire auction was carried out in one day only and there was no healthy competition in bidding process and others have no knowledge regarding such auction. He has submitted that fresh auction is required to be held. Accordingly, he has prayed to allow present petition.
SPECIAL CIVIL APPLICATION No. 7375 of 2016
15. So far as Special Civil Application No. 7375 of 2016 is concerned, Mr. M.B. Gandhi, learned Senior Counsel for the petitioner has vehemently submitted the same facts, which are narrated in the memo of petition and has submitted that Kharaba land of revenue Survey No. 304/1 of Village-Pipli was leased to the petitioner for two years initially and, thereafter, it was given on permanent basis by the concerned revenue authority and the petitioner is in possession thereof. While referring to documentary evidence on record, which includes maps and forms and other correspondence, learned counsel Mr. Gandhi has submitted that the petitioner is in possession of the land of Survey No. 304/1 of Village-Pipli since 1967-68, whereas Gamtal of Village-Timbdi has been sanctioned later on. He has submitted that as per the letter of Pipli Gram Panchayat, the petitioner is occupying the land of Village-Pipli, and he is not in possession of the land of Village-Timbdi. While referring to letter of Collector and correspondence entered into between the Collector and the authorities below, he has submitted that from these letters, it appears that there is some mistake on the part of the revenue authorities in preparing Gamtal of Village-Timbdi and by super-imposing the Gamtal, the land of the present petitioner has been shown falling in Survey No. 94/2 of Village-Timbdi. According to Mr. Gandhi, this act of the concerned officer cannot be treated as "encroachment by the petitioner" on the land of Timbdi Gram Panchayat.
15.1 He has further submitted that while serving revised lay out plan of Village-Timbdi, even there is land shown as stone crushing industry. He has submitted that auction of the land was done by Timbdi Panchayat. He has also submitted that so far proceedings of auction is concerned, TDO has confirmed it. According to him, if any order is passed by TDO then against that order only the Collector would have jurisdiction and not DDO. Senior Counsel, Mr. Gandhi also submitted that order of DDO was passed without issuing any notice to the respondents and present petitioner. He has submitted that the order passed by learned SSRD is also proper. He has submitted that the land granted to the present petitioner is government waste land and granting of land has not been challenged by anybody. He has submitted that the disputed question of fact are involved in the matter and, therefore, the petition filed by the other side needs to be rejected and the present petition be allowed. He has relied upon following decisions in support of his submissions:-
15.2 In the case of Govind Murji Patel (Kerai) and Others v. State of Gujarat and Others reported in 2007 (1) GLR 671, it is held as under:-
"6. It is not in dispute that sanad of the land in question was already issued, when the revisional powers were exercised by the authority for the first time in the year 1994. It appears that the sanad came to be issued pursuant to the orders dated 28.2.1985, more particularly in view of the conditions incorporated. It is well settled that if the sanad has been issued in pursuance to the order passed by the revenue authority for allotment of the land the powers under the Land Revenue Code of revisional jurisdiction cannot be exercised, since the execution of the sanad is an agreement between the purchaser of the land/allottee of the land and the State Government. The reference may be made to the decision of this Court in case of "Patel Raghav Natha v. G.F. Mankodi, Commissioner, Rajkot Division and Others", reported in 1965 GLR, 34 and more particularly the concluding observations made at para 13 as under:
"13....Therefore, to my mind, the term included in this agreement can only mean that over and above the conditions which were specifically mentioned in the agreement, other conditions contained in any of the provisions of the Code, which can apply to such a grant, shall also apply. In my view, therefore, Section 211 cannot apply to the agreement, even if it is tried to be so made applicable by this particular condition. If in law there is no jurisdiction under Section 211 to revise an agreement no amount of terms included in a document between the parties can vest in the authority that jurisdiction. Under these circumstances, I find it difficult to accept the submissions made on behalf of the Municipality whereby they have urged that the inclusion of this condition would entitle the Government to revise the agreement itself under its powers, under Section 211. As a result of this train of discussion and reasoning, it must be held that the Commissioner's order is without authority and that there was no jurisdiction vested in him to pass an order which goes to nullify the agreement. In my view, the sanad or the agreement passed in this case as a result of the Collector's order still stands and is binding on both the sides till it is set aside in due course of law. As I have already observed that observed and as was observed in the various decisions discussed above, the right procedure for the Government is to go in a civil suit to set aside that agreement. Till then it stands good and binding."
7. Therefore, if the matter is considered in light of the above legal position, the exercise of the revisional power by the first authority and its confirmation thereof by the higher authorities can be said as without there being any jurisdiction to exercise the appellate power/revisional power and the proper course for the aggrieved party was to prefer the civil suit."
15.3 In the case of Jaagabhai Indubhai Saraiya v. District Registrar, Cooperative Societies, Board and Others reported in 2020 (1) GLR 247, it is held as under:-
"4. At the outset, it is pertinent to note that the present petition involves serious disputed questions of facts, inasmuch as the petitioner has alleged fraud and misappropriation of money at the instance of the then Secretary of the respondent Society. Whether such fraud was committed or not and whether the Secretary had obtained loans mortgaging the lands of the petitioner and others without their knowledge or not and by forging documents or not, are highly disputed questions of facts, which could not be decided in the petition filed under Article 226 of the Constitution. As rightly submitted by the learned Advocate Mr. Viral Shah for the respondent Bank, relying upon the decision of the Supreme Court in case of Roshina T. Vs. Abdul Azeez K.T. and Anr., reported in (2019) 2 SCC 329, the petition involving disputed questions of facts and that too, between the private parties, would not be maintainable. The appropriate remedy would be the suit in the Civil Court or the proceedings under the Gujarat Cooperative Societies Act, as may be permissible."
15.4 In the case of Punjab National Bank and Others v. Atmanand Singh and Others reported in 2020 (6) SCC 256, it is observed as under:-
"22. We restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law."
15.5 In the case of Yusuf Gulammoudin Mogal v. State of Gujarat reported in 2011 JX (Guj) 885, it is observed as under:-
"(19.) It is settled position of law that a writ court, in exercise of its jurisdiction under Article 226 of the Constitution of India, need not quash an order if it gives rise to another illegal order. The Supreme Court in the case of CIT V/s. Green World Corporation, reported in (2009)7 SCC 69, in paragraph 66 held as under:-
"66. It is now well settled that this Court in exercise of its extra-ordinary jurisdiction under Article 136 of the Constitution of India may, in the event an appropriate case is made out, either refuse to exercise its discretionary jurisdiction or quash both the orders if it is found that setting aside of one illegal order would give rise to another illegality. In Transmission Corpn. of A.P. Ltd. V/s. Lanco Kondapalli Power (P) Ltd. [(2006) 1 SCC 540], this Court held: '53. It is now well-settled that this Court would not interfere with an order of the High Court only because it will be lawful to do so. Article 136 of the Constitution vests this Court with a discretionary jurisdiction. In a given case, it may or may not exercise its power."
(20.) An identical view has been taken by the Supreme Court in the matter of State of Uttar Pradesh V/s. Ajitsinh Bola, reported in (2004)6 SCC 800. In paragraph 9 it has been observed as under:-
"9. He has also not shown us any law or rule which authorizes the District Magistrate to take over possession in the manner done in the instant case. We do not wish to say anything more at this stage because we are conscious of the fact that the writ petitions are still pending before the High Court. Having regard to the manner in which the District Magistrate took over possession of the premises, which appears to us as at present advised, to be high-handed, arbitrary and without any legal sanction we are not persuaded to exercise our discretion under Article 136 of the Constitution of India to set aside the interim order passed by the High Court. It is well-settled that this Court will not exercise its discretion and quash an order which appears to be illegal, if its effect is to revive another illegal order."
(21.) In the matter of Gadde Venkateshwara Rao V/s. Government of Andhra Pradesh & Ors., reported in AIR 1966 SC 828, in paragraph 17 it has observed as under:-
"17. The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under s. 72 of the Act to review an order made under s. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963 If the High Court had quashed the said order, it would have restored an illegal order-it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."
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(23.) For the reasons recorded above and applying the well-settled principle of law that a writ court, in exercise of its jurisdiction under Article 226 of the Constitution of India or a petition under Article 227 of the Constitution of India, need not quash an order if it gives rise to another illegal order, we hold that no error, much less an error of law, can be said to have been committed by the learned Single Judge in dismissing the petition, confirming the order passed by the Gujarat Revenue Tribunal dated 25th June 2009."
15.6 In the case of Charity Commissioner v. State of Bombay (Now the State of Gujarat) and others reported in 1993 (1) GLH 94, Division Bench of this Court has observed as under:-
"(56.) The most important feature which has a direct bearing on the question under consideration, however, is that the rules were made with the consent of the Barot and Kamalias who were the sharers in the Golakh income as well as with the consent of the Manager of the Bahucharaji temple and the Vahivatdar of Chanasma. Besides, it is also provided in Rule 9 that if any modification was required to be made in the amount of expenditure specified in Rules 5 to 8, such modification was to be made with the consent of the Barot and Kamalias. The question is whether the rules which derive their authority from a consensus of mind and which depend for their future modification on consent of parties likely to be affected by such modification could be treated as law. As pointed out by the Supreme Court in Narsing Pratap Deo's case (supra), a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by Courts. Law, in the case of an absolute monarch, is a command which has to be obeyed by the citizens whether they agree with it or not. In Umaid Mills Lid. V/s. Union of India, AIR 1963 S.C. 953, this essential characteristic of law has been succinctly brought out in the following words (at page 958 of the report):
"We think that the true nature of the order must be taken into consideration, and the order to be law must have the characteristics of law, that is, of a binding rule of conduct as the expression of the will of the sovereign, which does not derive its authority from, mere consensus of mind of two parties entering into a bargain. It is not necessary for this purpose to go into theories of legal philosophy or to define law. However law may be defined, be it the command of the supreme legislature as some jurists have put it or be it a "body of rules laid down for the determination of legal rights and duties which courts recognise", there is an appreciable distinction between an agreement which is based solely on consent of parties and a law which derives its sanction from the will of the sovereign. A contract is essentially a compact between two or more parties; a law is not an agreement between parties but is a binding rule of conduct deriving its sanction from the sovereign authority."
In Pramodsinhji's case (supra), the following observations, which have a direct bearing on the point under consideration, are made by this Court (at page 17 of the report):
"The Court must, in construing such an act, ask itself, does the act amount to a command or a rule of conduct to be obeyed by the subjects of the State, and is the act attributable to the exercise of the legislative authority of the ruler in the sense that it lays down a body of rules determining the rights and liabilities not deriving its authority from a consensus of minds but from the expression of sovereign will"
It would appear therefore that the most important characteristic of law is that it is a binding rule of conduct which derives its authority from the expression of the will of the sovereign and not from a consensus of minds of parties likely to be affected thereby. Law does not originate in consent of parties but derives its sanction from the will of the sovereign. In our opinion, this most important characteristic of law is absent in the present case. The rules in question are not founded on the expression of the sovereign will of an absolute monarch which had to be obeyed by the persons affected thereby whether they agreed with the rules or not. The rules were made with the consent inter alia of Barot and Kamalias; they are based on consent of parties likely to be affected by them and originated from consensus of minds. But that is not all. The rules contenplate that any modification in certain material provisions of the rules could also be made only with the consent of the Barot and Kamalias. In other words, amendment of certain material provisions in the rules also is made dependant upon consensus of minds. It is difficult to envisage how, in these circumstances, the rules could be said to be legislative in character.
(57.) The next important circumstance which again points in the direction of the rules being executive in character is that the rules did not confer to recognise any new rights on any subject of the ruler; they merely incorporated the already existing and pre-determined rights of the Barot and Kamalias. In other words, the rules did not bring about a change in the existing conditions & prescribe a binding rule of conduct for observance in future thereby affecting legal rights and obligations of persons subject to the power of the ruler. In this connection it would be pertinent to cite certain observations from the decision of a Division Bench of this Court in Kadi Municipality V/s. New Chhotalal Mills A.I.R. 1965 Guj. 293 (at page 299 of the report) which read as under:-
The test, therefore, is whether the Act in question embodies the command of the sovereign prescribing a binding rule of conduct determining, legal rights and obligations. Law is the emanation of the will of the sovereign which prescribes a future and affecting legal rights and obligations or persons subject to his power. This test for determining a legislative Act is admirably set out in the following passage from the opinion of Holmes, J. in Prentis V/s. Atlantic Coast Line Co. Lid., (1908) 211 U.S. 210 at pages 226-227 where the learned Judge distinguishing between a judicial act and a legislative Act observed:
"A judicial inquiry investigates, declares, and enforces liabilities as they stand in present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of an Act legislative not judicial in kind...."
["x x x x x x"]
"That question dependents not upon the character of the body, but upon the character of the proceedings."
A similar statement in regard to what is an essential and distinguishing characteristic of a legislative Act is also to be found in Australian Boot Trade Employees Federation V/s. Whybrow & Co. (1910) 10 G.L.R. 266 at page 518, where Issacs J., thus laid down the test for determining what is a legislative Act as distinguished from a judicial Act:
"If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with sanctions for non-conformity-then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it....
"It would thus be seen that for the purpose of determining whether a particular Act of an absolute Ruler is a legislative Act or not, what we must consider is whether the Act "looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to" his power and determines "What shall in the future be the mutual rights and responsibilities of the parties" by prescribing a binding rule of conduct creating new rights and obligations."
The last part of these observations is cited with approval in Pramodsinghji's case (supra). It would thus appear that for the purpose of determining whether the rules in question are legislative in character or not it would be pertinent to inquire whether the rules look to the future and change existing conditions by enacting a new rule to be applied thereafter to all persons or to a class of persons subject to the power of the ruler. The question, in other words, must be: Do the Rules determine as to what shall in future be the mutual rights and responsibilities of the parties by prescribing a binding rule of conduct which creates new rights and obligations This test, in our opinion, is not satisfied in the present case. The evidence on record does not bear out that the rules were enacted to change existing conditions by prescribing a binding rule of conduct creating new rights and obligations. The rules were enacted merely to prescribe the mode in which the Golakh income of the temple was to be applied and appropriated and in so doing, the authors of rules have merely fallen back on the existing custom and practice and taken notice of rights of Barot and Kamalias as determined by the ruling Gaikwars from time to time. The rules in question, therefore, do not look to the future and chance the existing conditions by enacting a binding rule of conduct creating new rights and obligations."
16. Learned AGP Mr. Kanara for the respondent-State has submitted that the order of learned SSRD is proper and it may not be interfered with.
17. Learned advocate Mr. Munshaw for TDO has submitted written submissions and also submitted that through inadvertent mistake occurred in sanctioning new Gamtal for Village-Timbdi, by which actual land bearing Revenue Survey No. 304/1 paiki of Village-Pipli was determined as new Gamtal. According to him, instead of land of Village-Timbdi, land of Village-Pipli was earmarked as new Gamtal. Resultantly, 76 plots (19 plots through public auction and 57 plots through pre-allotment) were allotted land bearing revenue Survey No. 304/1 of Village-Pipli. He has submitted that this is nothing but an administrative error and it has come to light only after joint measurement by District Inspector of Land Records, Morbi, made on 25.5.2015. He has submitted that, in this set of facts, if the beneficiaries of allotment of this piece of land admeasuring 100 sq.yds. of village-Timbdi are ready and willing then they would be allotted the plots of Gamtal carved out of Revenue Survey No. 94/2 of Village-Timbdi.
18. So far as Special Civil Application No. 142 of 2001 is concerned, it appears that, by the impugned order of learned SSRD passed on 13.10.2000 in revision filed by Devmurari Ghanshyamdas Kalyandas Bavaji, he has set aside the order of the District Development Officer on the ground that it was passed without giving an opportunity of being heard to the applicant and on the ground that in view of Government Circular No. REV-1063-497164-H dated 10.3.1981 against the order passed by Taluka Development Officer, an appeal or revision would lie before Prant Officer or before Collector and DDO has no such authority to pass the order. Thus, considering the observations of learned SSRD that order of Taluka Panchayat was to be challenged before the Prant Officer or the Collector, naturally the order passed by such Prant Officer or Collector would fall under the Provisions of the Land Revenue Code and against such order, revision before learned SSRD would lie. Moreover, as per the provisions of Section 242 of the Panchayats Act, 1983 an appeal shall lie to District Panchayat against any order or decision of Village Panchayat or Taluka Panchayat affecting any individual or institution. Now, at this stage, reference may be made to Section 243 of the Gujarat Panchayats Act, 1993 wherein provision has been made as to who shall exercise appellate power of the District Panchayat. Section 243 reads as under:-
"243. Appeal Committee to exercise appellate powers of district panchayats.-
(1) Notwithstanding anything contained in section 145, the appellate powers conferred on a district panchayat under 1 [sections 104, 200 and 242] shall be exercisable by an Appeal Committee of the district panchayat, which shall consist of the President of the panchayat and four other members of the panchayats as may be chosen by the panchayat from amongst its members.
(2) The President of the panchayat shall be ex-officio, Chairman of the Appeal Committee.
(3) The term of the Appeal Committee shall be 2 [two and a half years.]
(4) A member chosen on the Appeal committee may resign from membership of the Committee by tendering his resignation to the Chairman.
(5) The State Government shall make rules consistent with this Act to regulate the procedure that the Appeal Committee shall follow in exercising its appellate powers and such rules may provide for- (a) the sitting of the members of the committee in benches constituted by the President or such other member of the committee as is authorised by him; and (b) the mode of settling differences of opinion which may arise between the members of a bench.
(6) The appellate powers as aforesaid shall include power to grant temporary injunction or to issue a direction to stay the execution of the decision or order appealed against until the disposal of the appeal or to make such other interlocutory orders as may appear to be just and convenient and such power may be exercised by the Chairman of the Appeal Committee.
(7) Any decision given by the Appeal Committee in the exercise of the powers conferred on it by this section shall be deemed to be the decision of the district panchayat."
19. Thus, in view of aforesaid provisions, an appeal filed before Panchayat needs to be decided by the Appellate Committee in view of provisions of Section 243, of course, as per Section 244 such appeal needs to be addressed to DDO. However, DDO has no such authority to decide any appeal filed against the order of Village Panchayat or Taluka Panchayat as the appellate powers are vested in the Appellate Committee. Now, admittedly, in this case, Appellate Committee of the Panchayat has not decided the appeal but it has been straightaway decided by DDO and, therefore, exercise of power by DDO itself is without jurisdiction. Under the circumstances, observations of learned SSRD in the impugned order cannot be faulted with and is sustainable in the eyes of law.
20. Having considered the submissions made on behalf of both sides coupled with material placed on record and the decisions cited at bar, it emerges that as per order of Collector, Morbi, dated 16.6.1986, land admeasuring 4013 sq.mtrs. of revenue Survey No. 94/2 of Village-Timbdi was sanctioned as new Gamtal. On that basis, District Inspector of Land Records, Rajkot, measured the land and submitted measurement sheet on 25.5.1988. It also reveals that in all 76 plots of new Gamtal were sanctioned by TDO, Morbi Taluka Panchayat, on 22.2.1991 relating to waste land bearing revenue Survey No. 94 paiki, admeasuring 4 acres and 13 gunthas of Village-Timbdi. It also emerges that thereafter, revised plotting was sanctioned by TDO, Morbi, through his order dated 18.8.1999. It also reveals that thereafter some of the plots of Revenue Survey No. 94 paiki were auctioned in the year 1990-91 and Sanad was issued in that regard. Requisite payment thereof was also made by the persons concerned. It also reveals from record that TDO has issued notification dated 30.1.1999 for auction of 16 plots of Survey No. 94/2 and auction was to be held on 22.3.1999 and it was conducted in the presence of Sarpanch of Village panchayat as well as Circle Inspector, who has submitted the report that the auction has been carried out in accordance with law.
21. It also appears that successful bidders have paid the amount and DDO also issued Sanad for the plots in question to successful bidders. Not only that TDO has also vide his order dated 19.8.1999 approved auction on certain terms and conditions.
22. It also reveals from record that land bearing Revenue Survey No. 304/1 paiki of Village-Pipli, Taluka-Morbi, admeasuring 10000 sq.yds. was allotted to the petitioner of Special Civil Application No. 7375 of 2016 for stone crushing vide order dated 26.6.1968 passed by District Collector, Rajkot, and he was put in possession thereof and he is using it for stone crushing after sanctioned lay out plans. Thus, the factum of granting land to the petitioner of Special Civil Application No. 7375 of 2016 of Survey No. 304/1 paiki of Village-Pipli is admitted by the Government itself. It also reveals from documentary evidence that this fact is duly corroborated from these documents.
23. Now, the question arise as to whether the disputed land belongs to Gram Panchayat-Pipli or Gram Panchayat-Timbdi. It is pertinent to note that it is categorical admission on the part of TDO, Morbi Taluka that there was mistake in sanctioning of New Gamtal for Village-Timbdi and actual land bearing Revenue Survey No. 304/1 paiki of Village-Pipli was determined as New Gamtal. In other words, it appears that instead of land of Village-Timbdi, land of Village-Pipli was earmarked as new Gamtal. As admitted by TDO, Morbi, resultantly 76 plots, which seems to be allotted is land bearing Survey No. 304/1 of Village-Pipli. It appears that, at the relevant point of time, while sanctioning New Gamtal for Village-Timbdi, instead of doing actual measurement of the land and actual visit of the place by the concerned officer of the department, they have mechanically prepared the map by super-imposing the survey numbers at their leisure in their office and thereby created this sort of dispute, which is affecting not only the parties to the petition but also to both the Villages. Whether the error is inadvertent or not, it is for the administration to correct and rectify the mistake which is affecting the rights of the litigating parties and bring solution to the dispute by taking appropriate steps.
24. Considering the facts and circumstances of the case, it clearly transpires that while cancelling auction, learned DDO has not provided any opportunity of hearing to successful bidders and has passed the order violating the principles of natural justice. Such order is liable to be set aside only on this ground. When the DDO has passed order in breach of principles of natural justice, the question as to who has set aside it pales into insignificance. Otherwise also, considering the material placed on record and the fact that auction of the plots is duly supported by documentary evidence and it has not been challenged before higher authority of the Government, auction cannot be treated as illegal.
25. Considering these facts, when there is an administrative mistake committed by the authority, it would be proper to direct the authorities concerned to sort out the dispute between the parties by amicable settlement and to see to it that the villagers of Timbdi Village, who have been allotted plots are not compelled to pay more amount than what was payable by them at the relevant time and to provide them suitable alternative plots in the vicinity of Village-Timbdi.
26. In view above discussion, following order would meet the ends of justice:-
Special Civil Application No. 142 of 2001 is dismissed. The impugned order order passed by the respondent no. 1 dated 13-16/10/2000 is confirmed.
So far as Special Civil Application No. 7375 of 2016 is concerned, in view of admission on the part of TDO that there was inadvertent mistake in sanctioning new Gamtal for Village-Timbdi, revenue authorities are hereby directed to see to it that 76 plots which were allotted, treating them as land of Village-Timbdi, which is actually the land of Survey No. 304/1 of Village-Pipli, the plot holders thereof be provided alternative suitable plots of equal measurement in the vicinity of Village-Timbdi, on the same price, which was payable by them on the date of issuance of Sanad. Such exercise be completed by the concerned authority within a period of four months from the date of receipt of this order.
It is also observed that the land leased to the petitioner is of Survey No. 304/1 located in Village-Pipli and possession of the said land is with the petitioner, which may not be disturbed, without following due process of law. Rule is made absolute. No order as to costs.
FURTHER ORDER
27. At this stage, on behalf of Mr. Patel, learned advocate for the petitioners of Special Civil Application No. 142 of 2011 request to stay operation of this order. In view of the observations made in this judgment, prayer is rejected.
