STATE OF GUJARAT Vs. PORBANDAR MUNICIPALITY

JUDGEMENT

(1.) THE appeal has been admitted for hearing on the following substantial questions of law:

(2.) THE facts necessary for disposal of the present Second Appeal are that respondent No.2 -plaintiff, Shiv -Shakti Co -operative Housing Society Limited, Porbandar, made an application to the Porbandar Municipality for allotment of the land. The Society got itself registered on 1st October, 1983 though the application was made on 3rd June, 1983. The Municipality (original defendant No.2 and present respondent No.1) passed Resolution No.59 on 21st July, 1983 wherein it was resolved to allot 12 (twelve) plots to the original plaintiff/present respondent No.2. In accordance with the said resolution, a Sale Deed was executed and registered on 12th August, 1983, the possession of the said twelve plots was handed over to the Society, the land admeasured 1,572.11 sq. yards and the sale consideration was Rs. 94,326.70. It appears that one Khumansingh J. Zala made an application to the Collector submitting, inter alia, that the transaction was fishy and the Municipality had no authority to pass such a resolution or sell the land or execute the Sale Deed. The Collector issued an interim injunction on 29th November, 1983 and kept the resolution and the Sale Deed in abeyance. However, after hearing the Municipality, but, without any notice to the plaintiff/respondent No.2, the interim injunction granted on 29th November, 1983 was confirmed by the Collector.

(3.) SHRI Kogje, learned Counsel for the State -appellant, submits that in view of Section 258, read with Section 65(2), of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act" for the sake of convenience and brevity), the Collector would be entitled to interfere in a matter where he finds that the Municipality has acted contrary to the provisions of law and has parted with the land without any authority of law. His submission is that if the Court was of the opinion that no opportunity of hearing was afforded to the present plaintiff and a final order against the interest of the plaintiff was made, then, the learned trial Court, at the best, could set aside the final Order dated 21st January, 1985 and require the Collector to decide the matter afresh after hearing the plaintiff. His submission is that the Court could not set aside the orders dated 29th November, 1983 and 21st January, 1985 and hold that the plaintiff had become absolute owner of the property and the State was not entitled to take any action.