2004 Supreme(Guj) 696

Gujarat High Court
Judgename :J.N.PATEL
AHMEDABAD MUNICIPAL CORPORATION - Appellant
Versus
RATAJI GANDAJI THAKORE - Respondent
S.C.A.7199 of 1996
Decided On : 10/30/2004

Headnote:(a) Bombay Tenancy & Agricultural Lands Act, 1948 (Bom. Act 67 of 1948) - Section 32(9) - Declaration about ownership - Jurisdiction - Mamlatdar and ALT while exercising power under Tenancy Act could not travel beyond the provisions of the Tenancy Act and exercise jurisdiction under Town Planning Act to declare that petitioner is not the owner or not in possession of final plot No. 42 consequently observation made in impugned order passed by Mamlatdar and ALT and confirmed by State Govt. are without jurisdiction observations are quashed and set aside.

       There is no dispute on the point that Mamlatdar and ALT was exercising power under Tenancy Act and therefore, the scope and ambit of the jurisdiction of the Mamlatdar and ALT would be within the provisions of the Tenancy Act. There is also no dispute on the point that the Mamlatdar and ALT could not have exercised the jurisdiction under the Town Planning Act. Formerly it was Bombay Town Planning Act and now The Gujarat Town Planning And Urban Development Act, 1976 (hereinafter referred to as the TP Act). Therefore, while examining the matter, the Mamlatdar and ALT could not have travelled beyond the provisions of the Tenancy Act. Even if the finding of the Mamlatdar is accepted for the consideration that the necessary correction was not carried out in the revenue record by the Town Planning authority while preparing the scheme and/or while finalising the scheme, the Mamlatdar and ALT could not have made observations which results into nullifying the statutory effect of TP Scheme. It is well settled that the competent authority under one enactment has to exercise the power within the scope and ambit of the said enactment. It may refer to the other enactment while considering the matter because incidently it may also be required to consider the facts, but while exercising power under one enactment, the final declaration cannot be given under other enactment for which there is no jurisdiction with the said competent authority. [Para 11]

       If the observations made in the impugned order passed by the Mamlatdar and ALT and its confirmation thereof by the State Government in the revisional jurisdiction qua the rights of the petitioner Corporation, appears to be exceeding in exercise of the jurisdiction and also without jurisdiction, because neither the Mamlatdar and ALT nor the State Government, exercising revisional power under the Tenancy Act has any competence or jurisdiction to finally conclude the rights of the parties over the land in question, vis a vis the rights of the local authority which the competent authority to implement the scheme as per the provisions of Town Planning Act. When the observations made in the order and the operative portion in the order of the Mamlatdar to that extent and its confirmation thereof by the State Government to that extent are wholly without jurisdiction. [Para 13]

       (b) Bombay Town Planning Act, 1954 - Section 51(3) - Sanction of scheme - Effect of - After the sanction of the scheme whether land vested to the Corporation and whether Corporation became absolute owner of the land in question or not is a matter which will have to be established in civil suit already pending decision.

       In the revision before the State Government there is recording of the aforesaid finding by the Mamlatdar and ALT qua the ownership of the land in question of the Corporation and it appears that the State Government in revisional jurisdiction has also committed apparent error in not expunging the observation and/or setting aside the order passed by the Mamlatdar qua the rights of the Corporation over the land in question and the further orders thereto. After the sanction of the scheme, whether the land vested to the Corporation and whether the Corporation became absolute owner of the land in question or not, is a matter which the petitioner as well as the Plaintiff of Civil Suit No. 4395 of 1992 will have to establish in the proceedings of the Suit and, therefore, Court found that any view expressed by this Court on the said aspect may be prejudice to the rights of either side in the proceedings of Civil Suit No. 4395/1992 and therefore, the said contentions of both the sides deserves to be kept open.

       Case Referred :

       Evergreen Co-operative Housing Society vs. Special Secretary Revenue Department, Gujarat State, 1991 (1) GLR 113;; Janardan D. Patel vs. State of Gujarat, 1997 (1) GLR 50;; Navrangpura Gam Dharmada Milkat Trust & Anr. vs. Ramtuji Ramaji & Ors., 1993 (2) GLR 1496.