CAV JUDGMENT

(Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN)

Una Nagar Panchayat, in exercise of powers conferred on it under Section 22(1) of the Bombay Town Planning Act, 1954 (for brevity “the Act”) passed Resolution No. 235 dated 10th December, 1970, declaring its intention to make Town Planning Scheme (No.2), in respect of lands bearing revenue survey No. 537/1, 537/2, 537/3, 537/4 along with other lands. The relevant records were forwarded to the State Government. Copy of the plan and the details thereof were also made available and open for public inspection at Head Office of the local authority, as provided under Section 22(4) of the Act. Later after completing necessary formalities, Nagar Panchayat, in exercise of powers conferred under Section 23 of the Act, finalised draft Town Planning Scheme No.2, and it was accordingly published in the Gujarat Government Gazette, Part-II on 1st June, 1972. Government, in exercise of powers conferred under Section 23 of the Act sanctioned the draft Town Planning Scheme, vide it's Resolution dated 17th October, 1973, which was also published in the Government Gazette, Part IV dated 15th November, 1973. Later the draft scheme was forwarded to the Government for finalization and the Government, in exercise of powers conferred under Section 28(2) of the Act, finalized the draft scheme, which was published in the official gazette vide Notification dated 2nd September, 1976.

2. The final plot No. 185 falling under Survey No. 537/1 and 2, of the Town Planning Scheme No.2, Una Town is the subject matter of the present dispute. Above mentioned plot was reserved under the scheme for development of town centre of the Nagar Palika. Land covered under Survey No. 537/1 and 2 originally belonged to late Dharamshi Narandas. Later, ownership vested on his descendants Chhotalal Harkhlal, Harikishandas Gulabchand and others. However, in view of reconstitution of the plots, they were given in exchange final plot Nos. 121 and 123 and possession of the plots were mutually transferred. So far as final plot No. 185 is concerned, it was vested in the Nagar Palika by final award of the Town Planning Officer and reserved to be developed as a town centre. Though final plot No. 121 and 123 was given to it's original owner, a Civil Suit No. 268 of 1976 was filed before the learned Civil Judge, Senior Division, Junagadh against Nagar Palika and the Government for a declaration of title of the said land in survey No. 537/1 and 537/2 comprising of final plot No. 185 of Town Planning Scheme No.2. Suit was however, dismissed and the ownership over final plot No. 185 was declared to be that of the Nagar Palika.

3. The Nagar Palika for the development and utilisation of the lands covered by the final Town Planning Scheme, had started digging to lay foundation for construction of the compound wall around final plot No. 185, but was noticed that few persons had encroached upon the land. Civil Suit No. 39 of 1994 was also instituted by the heirs of Karsanbhai Kalabhai before the Court of learned Civil Judge (Junior Division), Una, seeking a permanent injunction claiming possession. In the Suit, only the Chief Officer of Nagar Palika was made as the defendant. It was pointed out before the Court that the land in question was covered under the Town Planning Scheme. Suit was however, decreed on 31st March, 1995, holding that the plaintiffs be not dispossessed without following the due process of law. In order to thwart further proceedings in pursuance to the final Town Planning Scheme, yet another Civil Suit No. 47 of 1994 was filed by one Radheshyam Thavarmal against the Nagar Palika. Another Civil Suit No. 110 of 1995 was also filed against Nagar Palika by one Tidabhai Kalabhai and others in respect of part of the land in survey No. 537/1 and 537/2, which formed part of Final Plot No. 185. Criminal case No. 1590 of 1995 was also filed by one Babubhai Karsan against respondent No. 9(2) alleging trespass over the