ARJUNSINGH JEHALJI GURJAR DR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal by the original plaintiff of the Regular Civil Suit No. 50 of 1967 of the Court of the Civil Judge (J.D. Himatnagar who was pleased to dismiss the same with costs. The defendant No. 1 is the State of Gujarat and the defendant No. 2 is the Idar Nagar Panchayat. The plaintiffs appeal being the Regular Civil Appeal No. 1 of 1972 in the District Court had come to be dismissed by the learned Joint Judge there at Himatnagar and hence the original plaintiff has filed the present second appeal.

(2.) The dispute concerns an open land situated within the limits of village Idar in Sabarkantha District. The plaintiff admittedly owns the nearby standing super structure bearing Nagar Panchayat No. 527. The said house is situated in Ward No. 1 in the town of Idar. This house was purchased by the father of the plaintiff in the year 1922 from one Purohit Tejaram. then in the year 1932 the plaintiffs father had purchased the open land situated on the north east and west of the said house from the then ruler of Idar who had granted a Sanad popularly known as Parvana bearing No. 1359 dated 22-8-1932. This land covered by the said Sanad is known as Khunta land and one of the terms of the grant was that the land was to be land as open land. The suit concerned that Khunta land and is hereinafter referred to as the suit land. The map Ex. 80 depicts the land in dispute and the map in the alleged Parvana Ex. 56 also depicts the situation. As far as the location of the suit land is concerned there is no controversy though Ex. 56 which purports to be a copy of the original Sanad was held by the trial Court as admissible in evidence whereas the lower appellate Court held it as not admissible in evidence for want of production of the original and for want of any evidence permitting secondary evidence. On the north of the part of the land there is the Swaminarayan temple at Idar.

(3.) In respect of this land the Panchayats predecessor the then Municipality had given notice to the plaintiff to remove the structure which was put up by the plaintiff on this land. The said notice was issued on 18 1961 against the plaintiff under sec. 90(5) of the Bombay District Municipality Act 1901 whereby the plaintiff was called upon to make open the said land which was said to be the street land failing which necessary action was threatened. In reply to the notice by the Municipality the plaintiff had submitted his objection in December 1961 inter alia contending that the notice was given to him without hearing him that the land was of his ownership pursuant to the Sanad granted by the Idar State. It appears that after the plaintiffs reply the Municipality did not take any action as threatened in the aforesaid notice. But the Municipality pursued the matter on administrative level with the Government and the result was that the Government of Gujarat by its order dated 21-1-1963 directed the Collector Sabarkantha to remove the obstruction on the said land. The Collector in his turn asked the Chairman of the Nagar panchayat to remove that obstruction by a particular date viz. 5-2-63. Thereupon the Chairman of the Panchayat issued a notice dated 29th April 1963 under sec. 94 of the Gujarat Village Panchayats Act calling upon the plaintiff to remove the obstruction on the suit land which was alleged to he a public road obviously vested in the Panchayat. The plaintiff replied to that notice by a statutory notice under sec. 320 of the Gujarat Panchayats Act being dated 2-5-63 challenging the legality and vires of the action and authority of the Nagar Panchayat and its chairman or the Gujarat State or its agent the Collector of Sabarkantha to initiate this sort of proceeding. Thereafter the Nagar Panchayat passed a resolution on 13-6-63 requesting the State of Gujarat to declare the suit land as a public street land so as to vest the same in the Panchayat under sec. 95. On the one hand the Panchayat on the earlier occasion laid a claim to this land as street land vesting in it and subsequently there. after the Panchayat in order to get the matter straightened requested the Government to declare the land as street land. The State of Gujarat however felt that prima facie the land was a street land the plaintiff was however laying his claim against the Panchayat and inquiry under sec. 101 of the Gujarat Panchayats Act was contemplated. The Prant Officer therefore held inquiry after complying with all the principles of natural justice and on 11-3-1966 he declared the said land as public street land and negatived the claim of the plaintiff to it as his property. On 23-3-66 on receipt of the intimation of the order passed by the Prant Officer the plaintiff challenged the said order as illegal ultra vires unauthorised etc. and served a notice on the State of Gujarat the defendant No. 1 herein and then filed the suit in question. The Idar Nagarpanchayat which was joined as the defendant No. 2 in the suit was also served with an identical statutory notice. The plaintiff in this suit sought a declaration that the land on the southern side of the backwall of the Swaminarayan temple on the western corner of the said backwall and as described in detail in the plaint was a part and parcel of the Khunta Mapni land comprised in his Sanad dated 22-5-33 and as such was of his exclusive ownership. The plaintiff as a consequence sought for an injunction restraining the defendants from in any way interfering with his possession and enjoyment of the suit land.