GIRIRAJ CINEMA, MAHUVA Vs. COLLECTOR, BHAVNAGAR

JUDGEMENT

(1.) xxx xxx xxx

(2.) I have considered the rival contentions of the parties. It is settled legal position of law that in the matter of sale or granting of lease, the public authorities like Municipalities cannot act like a private individual. The local authorities are required to follow a uniform procedure known to all. The recognized method of sale is public auction. However, there is an exception in general rule that if the situation of a piece of land is such that it cannot be used by any other person than the person interested therein, then in such an event the public auction would be a formality and a sale through private negotiation cannot be described as arbitrary or discriminatory as no other person would normally be interested, and even if one is interested, it would not be possible for such a person to raise construction in accordance with the building Bye-laws of the local authorities. Such an exception has been recognised by certain statutes. Reference may be given to the Bombay Land Revenue Code,1879. Rule 43-B of the Code provides that

(3.) In the case in hand, the land under reference is a strip of land said to be in zigzag shape with 8 to 10 feet width. It is also stated that the land cannot be used by any other person except the petitioner as the same is in front of the petitioner's cinema theatre. It is also pointed out that if the land is sold to a third person, no construction can take place in accordance with the Municipal Bye-laws. Thus in my opinion, in such a case to ask for public auction would be nothing but an empty formality. In this view of the matter the decision of this Court rendered in Speciail Civil Application No. 5077 of 1985 cannot be attracted and the decision reported in AIR 1984 Guj. 134 relied upon by the learned AGP is also not applicable. In Bhagubhai H. Devani's case (supra) 8,00,000 sq. yds. of land was available to be distributed for the purpose of residential accommodation to the people and in the context of the decision of this Court the Municipality cannot be permitted to sell the land by private sale. But in the present case, it is a question of strip of land adjacent to the petitioner's cinema theatre building. Thus the Collector, Bhavnagar has committed an error in setting aside the Resolution passed by Mahuva Nagarpalika and in directing to sell the land under reference by public auction.