IDAR MUNICIPAL BOROUGH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have challenged the order dated 10.5.1983 at Annexure "A" to the petition made by the Development Commissioner, State of Gujarat, under Sec.298(1)(iv) of the Gujarat Panchayats Act, 1961(hereinafter referred to as "the said Act"), directing allocation of the nine employees' name therein for absorption in the Idar Nagar Panchayat on the ground that they were the employees affected by the alteration of the limits of the Panchayat.

(2.) The Idar Nagar Panchayat was the original petitioner in this matter and is now succeeded by the Idar Municipal Borough which has prosecuted this petition by substituting itself for the original petitioner No. 1, in view of the conversion of the Panchayat into a Municipal Borough. The case of the petitioners is that the survery Nos. 41 and 42 which are purported to have been transferred under the Notification dated 16.1.1971 issued by the State Government under Sec. 9(2) of the said Act from the Jawanpura Group Gram Panchayat, the respondent No. 3 herein, to the Idar Nagar Panchayat, by including the said area in the Idar Nagar Panchayat and excluding it from the respondent No. 3 Panchayat was only a mistaken exercisce because these survey numbers already belonged to the Idar Nagar Panchayat since much prior to the issuance of the said notification. According to the petitioners, ever sine the period of the erstwhile State of Idar these three survey numbers belonged to Idar and therefore, even the earlier order issued under Sec. 7A of the Bombay Land Revenue Code on 31.12.1969 as per Annexure "B" to the petition by the Government by which it was declared that with effect from 31.12.1969 the survey numbers 41 and 42 forming part of Jawanpura village of Idar Taluka will be excluded from the village limits and the land will be included in the limits of Idar village, was unnecessary. When the order dated 31.12.1969 and the Notification dated 16.1.1971 at Annexures "B" and "C" the petitions were issued in respect of these survey Nos. 41 & 42, to the Jawanpura Group Gram Panchayat had challenged them by preferring Special Civil Application No. 120/71 and Special Civil Application No. 164/71 before this Court. Thereafter, Special Civil Application No. 120/70 was withdrawn while Special Civil Application No. 164/71 was summarily dismissed initially but after the order of summary dismissal was set aside in the Letters Patent Appeal No. 122/71, it was heard again and disposed of on 11.2.1975 by the learned Single Judge relegating the respondent No. 3 to the alternative remedy of filing a suit in the matter. It appears that interim relief was granted for a period of 75 days against the said Notification so as to enable the respondent No. 3 Panchayat to approach the Civil Court.

(3.) Thereafter, Regular Civil Suit, No. 135/75 was filed by the respondent No. 3 Panchayat in the Court of Civil Judge (S.D), Himmatnagar claiming right over the disputed survey Nos. 41 and 42 and challenging the validity of the order dated 31.12.1969 issued under Sec. 7-A of the Bombay Land Revenue Code and the Notification dated 16.1.1971 issued under Sec. 9(2) of the said Act. In that suit the Trial Court held that the respondent No. 3 Panchayat (plaintiff therein) failed to prove that survey Nos. 41 and 42 were part of Jawanpura village. It was held that the respondent No. 3 was not entitled to collect any octroi in respect of the said area. The challenge against the said order and Notification was rejected and it was held that the Idar Nagar Panchayat proved that survey Nos. 41 and 42 were within the limits of that Panchayat and that they were entitled to collect octroi and other income in respect of the said area. The suit of the respondent No. 3 was therefore dismissed. The Civil Appeal No. 17 of 1980 which ws filed against that decision preferred by the respondent No. 3 was also dismissed on 22.4.1983 by the District Judge, holding that the disputed survery Nos. 41 and 42 were within the limits of Idar Nagar Panchayat and that the Idar Nagar Panchayat had a right to collect octroi. The validity of the order dated 31.12.1969 and the notification dated 16.1.1971, was upheld. In the process, an observation was made, on which much reliance is placed on behalf of the petitioner, to the effect that a mistake even on the part of the Government in issuing these Notifications cannot change the true position that these two survey numbers were part and parcel of the Idar village even before these notifications were issued. Against the decision of the District Court Second Appeal No. 146/83 was preferred, which came to be summarily dismissed on 6.5.1983 by the High Court. The decision of the Civil Court in Suit No. 135/75 thus, became final. However, there were other suits filed by the residents of Jawanpura village, which according to the petitioners, were filled at the behest of the respondent No. 3 Panchayat, but all those efforts failed. According to the petitioners, despite the decision of the Civil Court holding that the said survey numbers belonged to Idar Nagar Panchayat, the respondent No. 3 Panchayat continued to collect octroi from these area until the petitioner No. 1 filed Regular Civil Suit No. 146/86 in the Court of Civil Judge (S.D), Himmatnagar and obtained an interim injunction against the respondent No. 3 Panchayat on 30th September, 1986. The case of the petitioner is that though it was not necessary to publish the Notification dated 16.1.1971, which was mistakenly issued, the same came to be published on 9.3.1993 as per Annexure "L" to the petition. As these two disputed survey numbers always belonged to Idar ever since the existence of Idar State, there was no scope for exercising powers under Sec. 298(1 )(iv) and allocating the employees of the Jawanpura Panchayat to the petitioner Panchayat. According to the petitioners, since these disputed survey numbers always belonged to Idar, there was no need to exclude them from Jawanpura and include them in Idar.