Final Judgement Gopinathji Devmandir Trust vs. State of Gujarat

C/LPA/608/2008 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

LETTERS PATENT APPEAL NO. 608 of 2008In

SPECIAL CIVIL APPLICATION NO. 6552 of 2007

With SPECIAL CIVIL APPLICATION NO. 15460 of 2006

With CIVIL APPLICATION NO. 6711 of 2008

In LETTERS PATENT APPEAL NO. 608 of 2008

With CIVIL APPLICATION NO. 7061 of 2008

In LETTERS PATENT APPEAL NO. 608 of 2008

With SPECIAL CIVIL APPLICATION NO. 14517 of 2006

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI

and

HONOURABLE MR.JUSTICE R.D.KOTHARI

=========================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

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=========================================GOPINATHJI DEV MANDIR TRUST THRO. EX-CHAIRMAN /

TRUSTEE & 1....Appellant(s)Versus

STATE OF GUJARAT THRO.THE SECRETARY & 3....Respondent(s)

=========================================Appearance:Letters Patent Appeal No.608 of 2008 in Special Civil Application No.6552 of 2007 :Mr.MIHIR THAKORE, SENIOR ADVOCATE WITH Mr.BM MANGUKIYA, ADVOCATE for the Appellant(s) No. 1 - 2Mr.DHARMESH DEVNANI, ASST GOVERNMENT PLEADER for the Respondents No.1 and 2.Mr.N.D. NANAVATI, SENIOR ADVOCATE WITH Mr. ANSHIN H DESAI, ADVOCATE for the Respondent(s) No. 3MR.S.N. SHELAT, SENIOR ADVOCATE WITH Mr.D.C. DAVE, SENIOR ADVOCATE WITH Mr.JAL SOLI UNWALA, ADVOCATE for Respondent(s) No. 4

Special Civil Application No.14517 of 2006 :MR BM MANGUKIYA, ADVOCATE for petitioners no.1 and 2.Mr.UTKARH SHARMA, ASST GOVT PLEADER for respondents no.1 and 2.Mr.N.D. NANAVATI, SENIOR ADVOCATE WITH Mr. ANSHIN H DESAI, ADVOCATE for the Respondent(s) No. 3.MR.MIHIR JOSHI, SENIOR ADVOCATE WITH Mrs.V.D. NANAVATI AND Mr.MITUL SHELAT for respondent no.4.Mr.UTKARSH SHARMA, AGP

Special Civil Application No.15460 of 2006 :MR.HARSHEEL SHUKLA, ASST GOVT PLEADER for respondents no.1 and 2.Mr.N.D. NANAVATI, SENIOR ADVOCATE WITH Mr. ANSHIN H DESAI, ADVOCATE for the Respondent(s) No. 3.MR.S.N. SHELAT, SENIOR ADVOCATE WITH MR.DEVANG NANAVATI FOR MS.V.D. NANAVATI for respondent no.4.

Civil Application No.6711 of 2008 :Mr.B.M. MANGUKIYA for applicants no.1 and 2.Mr.DHARMESH DEVNANI, ASST GOVERNMENT PLEADER for respondent(s) No.1 and 2.

Civil Application No.7061 of 2008 :Mr.B.M. MANGUKIYA for applicants no.1 and 2.Mr.DHARMESH DEVNANI, ASST GOVERNMENT PLEADER for respondents no.1 and 2. =========================================

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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHIandHONOURABLE MR.JUSTICE R.D.KOTHARI

Date : 22nd, 25th, 26th, 27th & 28th February 2013

COMMON ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)

These matters are having a little chequered history and

therefore, it is deemed proper that before going to the merits of the

matters, the background in which these matters have come up for

consideration of this Court be set out.

2. There is Gopinathji Dev Mandir at Town Gadhda, District

Bhavnagar. There is a trust in the name of ‘Gopinathji Dev Mandir

Trust’ managing the affairs of the said temple. A dispute arose qua

three roads which are described in the latter part of this judgment

and order and that dispute resulted into more than one round of

litigations. The litigation from which the present proceedings arise

are Special Civil Application No.14517 of 2006 filed by Shri

Gopinathji Dev Mandir Trust through its Chairman-Shri Bhanji

Bhagat and also in his personal capacity, who described himself as

Chairman of Shri Gopinathji Dev Mandir Trust. Special Civil

Application No.15460 2006 is filed by (i) Jagdish Bhagat Guru

Vasudev, (ii) Gunvantrai Chhaganlal Tarejiya, (iii) Manilal

Prabhubhai, and (iv) Shastri Ghanshyam Vallabhdasji, who has

described himself as Chief Executive of Gopinathji Dev Mandir.

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It is prayed in para 9(A) of Special Civil Application No.14517 of

2006 as under:

“Be pleased to issue a writ of mandamus or a writ in

the nature of mandamus or any other appropriate writ,

order or direction to quash and set aside the resolution

at Annexure-A passed by respondent no.3-Municipality

dated 30.05.2005 bearing Resolution No.137 of 2001

allotting public street/ road to Bochasanvasi Akshar

Purshottam Sanstha – respondent no.4, order passed by

respondent no.2 dated 26.10.2005 at Annexure-B to the

petition and also the order dated 27.6.2006 passed by

respondent no.1 at Annexure-C to the petition.”

3. These petitions were heard and disposed by the learned

Single Judge of this Court by judgment and order dated

02.09.2006. The said judgment and order of the learned Single

Judge was challenged by filing Letters Patent Appeal No.122 of

2007 in Special Civil Application No.15460 of 2006 and Letters

Patent Appeal No.123 of 2007 in Special Civil Application

No.14517 of 2006. The appeals were heard by Division Bench of

this Court and were dismissed by judgement and order dated

30.11.2007.

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The petitioners- appellants had filed Misc. Civil Application

No.1292 of 2008 in Letters Patent Appeal No.122 of 2007 in

Special Civil Application No.15460 of 2006, and Misc. Civil

Application No.1293 of 2008 in Letters Patent Appeal No.123 of

2007 seeking review of the judgment and order. The MCAs were

considered by Division Bench and dismissed by order dated

21.08.2008.

4. The petitioners then approached the Hon’ble the Apex Court

by filing Civil Appeals Nos.1529-1530 of 2009 and Civil Appeal

Nos.1593-1594 of 2009, which came to be disposed of by the

Hon’ble the Apex Court by judgment and order dated 10.04.2012,

the relevant part of which reads as under:

“7. Having regard to the consensus that emerged as

above, we pass the following order:

(i) The order dated November 30, 2007 passed by

the Division Bench and the order dated September 2,

2006 passed by the Single Judge are set aside.

(ii) Special Civil Application Nos.14517 of 2006 and

15460 of 2006 are restored to the file of the High

Court . However, these Special Civil Applications shall

be heard by the Division Bench along with Letters

Patent Appeal No.608 of 2008. (emphasis supplied)

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(iii) The contesting respondents in the above Special

Civil Applications shall be at liberty to file additional

reply affidavits/ counter-affidavits within two weeks

from today. Rejoinder-affidavits, if any, may be filed by

the petitioners therein within two weeks therefrom.

(iv) The High Court is requested to hear and decide

the above Special Civil Applications and Letters Patent

Appeal as expeditiously as may be possible and

positively by July 15, 2012. It is clarified that the

position that obtains today with regard to the subject

property shall be maintained by all the parties until

decision of the High Court and no application for

interim relief shall be entertained by the High Court.”

(emphasis supplied)

It is in view of this order of the Hon’ble the Apex Court that the

matters came up for consideration of this Court. The learned

advocates for the parties submitted that the direction ‘to decide the

Special Civil Applications and Letters Patent Appeal positively by

July 15, 2012 ‘ was subsequently modified by the Hon’ble the Apex

Court as the petitioners could not file rejoinder affidavits within

time prescribed by the Hon’ble the Apex Court and that they moved

the Hon’ble the Apex Court to extend that period which was

granted.

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5. Another important fact which has direct bearing on the

hearing of these matters is that after Special Civil Applications

14517 of 2006 and 15460 of 2006 were decided by the learned

Single Judge by judgement and order dated 02.09.2006 and before

the same could be considered by the Division Bench in Letters

Patent Appeal No.122 of 2007 and Letters Patent Appeal No.123 of

2007, which were decided by judgment and order dated

30.11.2007, the Government had passed order on 29.01.2007.

Consequent thereto the Collector had passed order on 20.02.2007

and on 02.03.2007.

These orders of the Government and the Collector were challenged

by filing Special Civil Application No.6552 of 2007, which came to

be heard and decided by the learned Single Judge by judgment and

order dated 21st, 22nd, and 24th April 2008, against which Letters

Patent Appeal No.608 of 2008 was filed. The same is directed to be

heard and decided by the Hon’ble the Apex Court by the aforesaid

order. The learned advocates for the parties requested that in the

changed scenario, instead of deciding Letters Patent Appeal

No.608 of 2008, Special Civil Application No.6552 of 2007 be

decided afresh by giving an opportunity to both the sides to present

their case and press for reliefs sought in Special Civil Application

No.6552 of 2007. The request is acceded. The resultant effect of

that is the judgment and order dated 21st, 22nd and 24th April 2008

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is rendered non est and Special Civil Application No.6552 of 2007

is decided afresh by this Court.

Special Civil Application No.6552 of 2007 is filed by Shri

Gopinathji Dev Mandir Trust through its Chairman Shri Harjibhai

Nanjibhai Bhimani and also in his personal capacity. It is prayed in

this Special Civil Application that:

“9(A) be pleased to issue appropriate writ, order

or direction to quash and set aside the order dated

29.1.2007 at Annexure-A and the order at Annexure-B

to the petition.”

The petitioners had moved an amendment which was granted by

the Court by order dated 11.04.2007, by which the following relief

was allowed to be added to the petition:

“9-AA Your Lordships will be pleased to issue

appropriate writ, order or direction quashing and

setting aside the order passed by respondent no.2 at

Annexure-E to the petition dated 23.7.2007;”

The learned advocate for the petitioners submitted that there is

some typographical mistake in the date and 23.07.2007 be read as

‘02.03.2007’.

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6. Coming to the controversy involved in these matters, it is

noticed that respondent no.4, a Public Charitable Trust, made

application on 07.08.2002 to the Gadhda Municipality setting out

therein various activities carried out by it and requesting that as

per the Government Resolution No.JMN/ 3991- 2114-A dated

14.08.1981 of the Revenue Department, Government of Gujarat,

the land admeasuring 9702 sq. ft. = 1078 sq. yards be allotted at

concessional rate to the applicants. Similarly, another application

of even date, for another piece of land ad measuring 5687 sq. ft =

631.8 sq. yards and land admeasuring 461.6 sq. meters = 551.86

sq yards was made. As there was no reply or response from

Municipality-respondent No.3, a reminder was sent on 02.07.2004.

It is thereafter that respondent no.3-Municipality passed a

Resolution bearing No.94/17 on 12.07.2004, inviting objections. It

is the say of the petitioner that the objections received were not

considered in the manner in which the same were required to be

considered. It is also the say of the petitioner that two objections

were treated as ‘time barred’ and were not considered at all.

As against that, the say of respondent no.3-Municipality is that

‘objections’ were not only considered but were given effect by

providing suitable conditions for grant of land in question. It is

said by the Municipality-respondent no.3 that this can be noticed

from the contents of Resolution No.137(27) dated 30.05.2005 as

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well as orders of the Collector and the Government and therefore,

the resolutions cannot be found fault with on the ground of non

consideration of objections.

Resolution dated 30.05.2005 passed by respondent no.3-

Municipality (in Special Civil Application No.14517 of 2006) by

which it decided to sell public streets to respondent no.4-

Bochasanvasi Shri Akshar Purshottam Sanstha and consequential

orders passed by the Collector and the Government are under

challenge.

7. Heard learned advocate Mr.B.M. Mangukiya for the

petitioners in Special Civil Application No.14517 of 2006 and other

matters and learned senior advocate Mr.Mihir Thakore for the

appellants-original petitioners with Mr.B.M.Mangukiya in Special

Civil Application No.6552 of 2007.

8. The gist of the contentions raised the by learned senior

advocate and advocate Mr.Mangukiya for the petitioners is that,

(i) The roads in question are “Prasadi” roads and the same

were used by Lord Swaminarayan during his stay for as long

as 29 years at Gadhda town. Besides, these roads are used

for ‘Jal Jilni Ekadashi’ precession and at the time of ‘Samaiya’

in Gopinathji Dev Mandir. The learned advocate submitted

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that under Article 25 of the Constitution of India the

petitioner in his individual capacity has right to “freedom of

religion” which includes to profess, practise and propagate

religion and therefore, he has right to use these roads as

were used during the lifetime of Lord Swaminarayan and

subsequent thereto.

(ii) The learned advocate for the petitioners submitted that

respondent no.3-the Municipality could not have closed these

roads when the same are not abandoned and that the

Municipality was required to take into consideration the

objections received in this regard. The learned advocate

submitted that though there was no consensus arrived at to

the closure of these roads, the Municipality has resolved to

sell the same to respondent no.4. The learned advocate for

the petitioner submitted that though earlier the Collector had

declined permission to sell this land and that decision is not

reviewed by any authority, the act of passing resolution by

respondent no.3-Municipality to sell this land to respondent

no.4 is illegal being violative of section 146(1) of the Gujarat

Municipalities Act, 1963 (hereinafter referred to as “the said

Act”). The learned advocate for the petitioner submitted

that section 146 of the said Act can be purposefully read by

bisecting the same into different parts. He submitted that

subsection (1) of section 146 of the said Act can be bisected

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in following parts: (a-i) to lay out and make new public

streets, (a-ii) to construct tunnels and other works subsidiary

to public streets, (a-iii) to widen, open, enlarge or otherwise

improve and (b-1) to turn, divert, extend, discontinue or stop

up any public street, (b-ii) subject to the provision of

subsection (2) of section 65 to lease or sell any such land,

theretofore used or acquired by the municipality for the

purposes of such streets.

The learned advocate for the petitioner submitted that what follows

is important in the said section, viz.

“(C-1) .. .. as may not be required for any

public street or for any other purposes of this Act.”

The learned advocate for the petitioner submitted that section

146(1) of the said Act is enacted by the legislature providing there

a ‘sequence’. That sequence cannot be given a go bye because

that may result into frustrating the whole object of the Section.

The learned advocate for the petitioner submitted that not for a

minute he is questioning the power of the Municipality of

discontinuing or stopping up any public street, but then he posed a

caveat and submitted that power which is conferred by section 146

of the said Act has to be exercised within the circumference

provided by law. The learned advocate for the petitioners

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submitted that plain reading of section 146 of the said Act provides

that first of all the Municipality must come to a conclusion that a

particular street is required to be discontinued or stopped up.

Once such a decision is taken, necessary steps are required to be

taken as provided by proviso to the said section. He submitted that

before going to the ‘procedure’ prescribed by the ‘proviso’,

according to him, once a street is discontinued or stopped up, the

land beneath such public street becomes available to the

Municipality which could be leased or sold. But then, before the

Municipality leases or sells that land, the Municipality has to

record a ‘conscious decision’ on the point that the said land is not

required for ‘any public street’ or for ‘any other purpose of this

Act’.

The learned advocate for the petitioners submitted that it is only

after the aforesaid conscious decision on two aspects, the

procedure prescribed by proviso to lease out or sell the land

beneath such street can be undertaken. The learned advocate for

the petitioners submitted that in the present case, he will invite

attention of the Court to various documents to demonstrate and

bring home the point that the Municipality has not complied with

the provision of Section 146 of the said Act as the procedure

prescribed therein is not followed. The learned advocate for the

petitioners submitted that the Municipality cannot sanction any

proposal for permanently discontinuing any public street unless at

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least one month before the meeting in which such proposal is

decided, notice signed by the Chief Officer has been put up on the

Notice Board in the Office of the Municipality and also in the street

or a part of the street which is proposed to be discontinued

informing the residents of the said proposal. The learned advocate

for the petitioners submitted that there is another important aspect

and that aspect is that the Municipality cannot sanction such

proposal until the objections, if any, to the said proposal, made in

writing, any time before the day of the said meeting are

considered. (emphasis supplied).

The learned advocate for the petitioners submitted that in the

present case he will be able to demonstrate and convince this

Court that the Municipality has failed in its duty to consider the

objections. The learned advocate for the petitioners submitted that

it is specifically mentioned in the Resolution itself that out of the

objections received by the Municipality at least two of the

objections were not considered by the Municipality on the ground

that the same were received beyond the time prescribed.

9. The learned advocate for the petitioners invited attention of

the Court to Annexure-E, at page 88, viz. Resolution of Gadhda

Municipality bearing No.94/ 17 dated 12.07.2004. The learned

advocate for the petitioners submitted that the opening part of the

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Resolution clearly mentions that the Municipality was in receipt of

an application from the Chief Secretary of Respondent no.4

mentioning therein that the land adjacent to the property of the

institution (respondent no.4) of the ownership of Gadhda

Nagarpalika of public street be given to the institution for

achieving its objects. The learned advocate for the petitioners

submitted that after setting out details of three different public

streets, the Resolution proceeds to record that the institution

(respondent no.4) has made its distinct contribution in literacy

campaign in Bhavnagar district and saints and volunteers of

respondent no.4-institution have worked to achieve the mission of

100% eradication of illiteracy. They have tried to accord public

education, and public enlightenment. The institution (respondent

no.4) has also undertaken the task of ‘Sukhdi’ distribution during

the time of drought. The work of distribution of water through

tanker and similarly construction of check dam, construction of

‘Khet Talavdi’ (a pond in a field), improvement of land, plantation,

etc. Besides, in Gadhda town about two years before, filth from the

bank of river Ghelo was removed and on both the sides of river

Ghelo, 4200 saplings were planted, the institution has continued its

upkeep. Respondent no.4-institution also got constructed an

artistic gate on the road coming from Village Dhasa. Thus, in

development activities of town, there is an invaluable contribution

of the institution (respondent no.4). Respondent no.4 has given

multifaceted contribution in development of Gadhda town.

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The resolution proceeds to record that if the land asked for is

allotted to respondent no.4-institution, then the same will be useful

in development of its activities. It is also mentioned in the

resolution that the land is demanded on concessional rate.

After mentioning this, the resolution proceeds to record that

against closure of roads no.1 and 2, objections are received from

the citizens of Gadhda town dated 25.11.1999, 27.12.1999,

06.12.2001 and 26.06.2004, mentioning therein that the road

leading to Ramaghat on Ghelo river and the road opposite to old

‘Chabutra’ from public bore well (danki) to Moti Deli of Darbar

passing near Vaghani Nivas be not closed and the same be not

given to respondent no.4-institution. It is also recorded in the

Resolution that the objection application dated 30.06.1988 given by

Shri Mogiben Dadabhai Khachar in connection with road no.3 and

notice dated 02.01.2002, through advocate were also taken into

consideration.

The Resolution then records that the objection applications which

are mentioned in serial nos.1 and 2, the same were taken for

discussion and during discussion it is noticed that if the land asked

for by respondent no.4-institution is spared, there is an alternative

ingress and egress and therefore, there is no question of any

hardship. It is also recorded that if the land adjacent to the land of

respondent no.4-institution is allotted to the institution, the

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institution will be able to put its cultural complex to a better use

and the complex of the institution can be visited by more persons/

visitors. The resultant effect of it will be that there will be benefit

of Gadhda town under the tourism policy of Government of Gujarat.

The Resolution then proceeds to record that with regard to Roads

No.1, 2 and 3, letters received from the Regional Director of

Municipalities, Rajkot, the Collector, Bhavnagar and Mamlatdar,

Gadhda were taken into consideration. Besides, it is recorded that

with regard to closing of these public roads on permanent basis

and publishing a notification for the same, letters are received from

the Collector, Bhavnagar [bearing No.Muni/2/ Vasi/ 2228-02 dated

18.11.2002].

10. The Resolution then finally resolved that as there is demand

from respondent no.4-institution for grant of aforesaid three public

roads on permanent basis by sale and as those three roads are

required to be permanently closed under section 146(1) of the said

Act, a public notice be given in newspapers and at public places the

said notice and map/ sketch of those roads be exhibited and

objections, suggestions in that regard be invited within a month

from the date of publication of such notice and on the basis of

objections/ suggestions received within time, after undertaking

required procedure, action be taken. Resolution is passed

unanimously.

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The learned advocate for the petitioners vehemently submitted that

the aforesaid resolution passed by respondent no.3-Municipality is

based on misleading facts contained in the applications made by

respondent no.4-institution. The learned advocate submitted that

to illustrate one of such mis-statements, is that it is stated in the

application that the land of the roads in question is adjacent to the

land belonging to respondent no.4-institution, similarly in the

applications made by respondent no.4-institution, it is not

mentioned that the land asked for is a ‘land of the road’, but it is

mentioned as ‘land only’. The learned advocate for the petitioners

submitted that it is specifically mentioned by the petitioners in

para 3.1 of the petition (in Special Civil Application No.14517 of

2006) that,

“3.1 The petitioners state that petitioner no.1 trust is

registered under the Bombay Public Trusts Act, 1950

bearing registration No.A-245. Gadhda Town is a

historical town. Lord Swaminarayan had stayed during

his lifetime at Gadhda and the temple is running under

the administration of petitioner no.1-trust. Lacs of

devotees have got affection not only towards the temple

but each and every memory of the Lord

Swaminarayan.”

11. The learned advocate for the petitioners submitted that it is

in light of the aforesaid averments and similar other averments

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made in the petition, respondent no.3-Municipality ought not to

have passed Resolution No.94/17 dated 12.07.2004 and Resolution

No.137/ 21 dated 30.05.2005. The learned advocate for the

petitioners submitted that the case of the petitioners is that the

roads in question are used as public streets for the last more than

200 years (para 3.3 of Special Civil Application No.14517 of 2006).

The learned advocate for the petitioners submitted that as was

resolved by Resolution No.94/17 dated 12.07.2004, public notice

was given in newspaper (Saurashtra Samachar, a daily newspaper

published from Bhavnagar) dated 24.07.2004, a copy of which is

produced at Annexure R-11 with affidavit in reply filed on behalf of

respondent no.3 in Special Civil Application No.15460 of 2006. The

learned advocate for the petitioners submitted that in the said

public notice also it is mentioned that,

“The residents of Gadhda Nagarpalika area are

informed by this public notice that Bochasanvasi Shri

Akshar Purshottam Sanstha has asked for the land of

the following roads, the description of which is set out

hereinbelow mentioning that the land is adjacent to the

land of the institution and for the purpose of

development work of the institution on permanent basis

by Gadhda Nagarpalika by Resolution No.94/17 of its

General Body has decided to call for objections under

section 146(1) of the Gujarat Municipalities Act.

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Notice, after description of three roads, mentions that

the land of the roads described hereinabove is sought

on permanent basis by sale by respondent no.4-

institution and these roads are to be permanently

discontinued for ingress and egress, if any public

institution, Mandali (society), firm, company or citizen

or anybody else has any objection, within 30 days from

the date of publication of this notice, shall submit in

the Office of Gadhda Nagarpalika, during office hours,

in writing.

12. The learned advocate for the petitioner submitted that in

response to the said public notice, the Executive, Kothari did

submit objections dated 12.08.2004 by Registered Post A.D. which

were sent to the Collector, Bhavnagar, District Development

Officer, Bhavnagar, President of Gadhda Borough Nagar Panchayat

and Secretary, Gadhda Borough Nagar Panchayat. The learned

advocate for the petitioners invited attention of the Court to those

detailed objections word to word. Gist of the objections is as under:

(i) Without taking into consideration the hardship of the

people, the land on which the vegetable market was situated

which was very convenient is given to Bochasanvasi Shri

Akshar Purshottam Sanstha. On account of that people of

Gadhda as well as persons, who earn their livelihood by doing

business in vegetables, traders, who come from outside for

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auctioning their produce are suffering great hardship. The

people of Gadhda are under shock on account of said act of

the Municipality and before they are able to forget that

shock, a movement to hand over ‘public street’ has caused

serious concern to devotees coming from outside.

Government and the Nagarpalika are supposed to act for

welfare of the people and not for the benefit of any

‘institution’, putting the people of town to hardship. The

Government or Nagar Panchayat should not act in a manner

which is not for the benefit of the people of the town. Any

idea of handing over of ‘public street’ to any person or

institution should be immediately dropped so that the

concern which is caused to the people gets subsided. The

Government and Gadhda Nagar Panchayat should

immediately declare that the road going from Gadhda temple

to Ghelo river is age-old, ‘Prasadi’ road and the said road is

used by people for years and the said road is not to be given

to any person or institution by Nagar Panchayat or

Government.

(ii) Lord Swaminarayan stayed in Gadhda for years. Lord

Swaminarayan used the road in question for going to river

Ghelo for taking bath and thus, the present road is ‘Prasadi

road’. The devotees are taking even dust of this road on their

head considering it to be very holy. The devotees of

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‘Swaminarayan Sampraday’ take dust of this road to their

home. Thus, this is a ‘Prasadi’ road and cannot be given to

any person or institution.

(iii) In Gadhda town, on 11th day of Bhadarvasud of Hindu

calender a fair is organized on the occasion of ‘Jal Jilni

Ekadasi’. On this, day ‘Thakoreji’ (deity) is taken in golden

palanquin in the form of procession in a traditional manner

from Gopinathji Dev Mandir of Gadhda to Ghelo river. This

procession is taken out for the last 200 years. This ‘Prasadi’

road is having strong bondage with ‘Shraddha’ (faith) of

devotees as well as saints. Therefore, this road be not given

to any person or institution.

(iv) One ‘Prasad Devsthan’ of the ownership of Gopinathji

Dev Mandir is situated in the area known as Moti Deli, it is

known as ‘Raghav Mandir’. Devotees and saints for the last

200 years or more are going to this Mandir for darshan. This

Prasadi is having bondage with faith of all saints and

devotees. Therefore, this road is not to be given to any

person or institution.

(v) That houses of the ownership of Gopinath Mandir are

situated in the area of Moti Deli. In these houses different

tenants are residing. From these houses a road to go to

Ghelo river is situated towards south of Bochasanvasi Shri

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Akshar Purshottam Mandir. The road to go to Ghelo river

from Gopinathji Mandir gets merged into the said road, thus,

for the tenants, that road is the only road to go to Ghelo river.

Besides, in the area known as Moti Deli, there are other

citizens residing. They are even today using this road. This

‘Prasadi’ road is having bondage with shraddha (faith) of

devotees and saints. Therefore, this road is not to be given to

any person or institution.

(vi) Traditional procession, on the day of ‘Jal Jilni Ekadashi’,

while returning after having performed ritual of ‘Jal Jilni’

goes to residences of devotees which is known as

‘Padhramani’. For Padhramani of Thakoreji in the area of

Moti Deli, for the last 200 years, this road is used. This 200 or

more years old road of ‘Prasadi’ is having attachment for

devotees and saints. To see that the religious feelings of

devotees and saints is not hurt, this road should not be given

to any person or institution.

(vii) For residents of Gadhda town as well as for devotees

coming from outside, for saints and for vehicles the present

road is the only short route to go to river Ghelo. If this road

is closed, then people residing at Gadhda town as well as

devotees coming from outside, saints and vehicles will have

unparalleled hardship and therefore, this road should not be

given to any person or institution.

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(viii) Gadhda is a holy place of Lord Swaminarayan. Every

year, grand festivals are celebrated and ‘Samaiyas’

(gathering) are also organized. In ‘Satsang’ lacs of devotees

with full ‘shraddha’ come for darshan and looking to the

number of persons, number of vehicles, present road leading

to river Ghelo is required to be made ‘one-way’. Therefore,

the said road should not be given to any person or institution.

(ix) Gadhda not only in Gujarat, but in India as well as the

world is considered as a ‘Tirth’, because at Gadhda Lord

Swaminarayan stayed for 29 years and therefore, streets and

roads of Gadhda are having close attachment with religious

feelings. Therefore, for heritage of 200 years of Lord

Swaminarayan, people are coming to Gadhda. They are

coming to visit exhibition or monument created by spending

crores of rupees. It is mentioned in Resolution No.94/17 that

Gadhda town is likely to get the benefit by tourism policy of

the State Government. No such benefit is going to be there

under tourism policy. Thousands of devotees are going to

visit Gadhda, not because one builds golden temple.

Importance of Gadhda is because of reminiscences of Lord

Swaminarayan are attached with Gadhda. Therefore, it will

be in fitness of things if ‘Prasadi’ road, pride of Gadhda,

being historical is not altered and shraddha of devotees is not

hurt. In Resolution No.94/17 of Nagarpalika it is mentioned

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that there could be an alternative way, but we do not give our

assent to any such alternative road.

(x) The gate constructed during the time of the erstwhile

rulers, near old vegetable market is also likely to be

demolished. This gate is an ancient one and is having

archaeological importance. Before demolishing the gate

constructed by Bhavnagar State, one may have to think about

Lal Darwaza of Ahmedabad. The gate which reminds the

people about the glorious past of Gadhda. Mere ‘thought’ of

demolishing such historical gate is going to hurt the feelings

of the people. The gate is pride of Gadhda. We register our

strong protest and opposition in writing.

(xi) Our aforesaid objection application be taken into

consideration if religious sentiments are not clear to

Nagarpalika. Officers from Gopinathji Dev Mandir Trust be

called in meeting so that they can effectively present their

case.

(xii) A Public notice is published in ‘Saurashtra Samachar’

dated 23.07.2004, wherein it is mentioned that, “As regards

roads no.1, 2 and 3, we register our strong objection and no

change be given in roads no.1, 2 and 3 in any manner and

our objection be taken into consideration”.

NOTE – Notice is as under:

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“Earlier, on 24.06.2004 we have sent our objection

application.

Taking into consideration the aforesaid facts, road leading

from Gadhda Gopinathji Dev Mandir to Ghelo river is more

than 200 years old ‘Prasadi road’, that ‘Prasadi’ road should

not be given to any person or institution. Despite the feeling

and demand of people, with a view to benefit any person or

institution, if any action will be taken to hand over the road,

the general public of Gadhda, known and unknown Hari

Bhakt will be compelled to resort to agitation in a Gandhian

style and entire responsibility for the same will be that of the

Government and Gadhda Nagar Panchayat.”

13. The learned advocate for the petitioners summarized his

submissions and submitted that the resolutions passed by the

Municipality are not in accordance with law. The same are passed

without taking into consideration the objection submitted by

various persons including that of the office bearers of Gopinathji

Dev Mandir Trust. The learned advocate for the petitioners

submitted that reserving his right to reply to the submissions made

by the learned advocates appearing for the respondents and

reserving his right to cite certain decisions, his submissions may be

treated to have completed.

14. Learned senior advocate Mr.N.D. Nanavati appearing with

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Mr.Anshin Desai for respondent No.3-Gadhda Nagarpalika

submitted that resolution of the Municipality is to be read as a

‘mere resolution’ and not as ‘a document’ drafted by persons

having legal acumen. The learned senior advocate invited attention

of the Court to section 146(1) of the said Act and submitted that

the very language used by Legislature is very clear. The

Legislature has conferred power on the Municipality to do certain

acts enumerated in the section. The learned senior advocate

submitted that the very fact that the section opens with the words,

“It shall be lawful for Municipality” is indicative of the fact that

the Legislature has given explicit permission that acts enumerated

in the section will be within the powers of the Municipality and it

will be lawful if such acts are performed. The learned senior

advocate analyzing the section submitted that (i) to lay out and

make new public streets, (ii) to construct tunnels and other works

subsidiary to public streets, (iii) to widen, open, enlarge or

otherwise improve, and to run, divert, extend, discontinue or stop

up any public street, is within the power of the Municipality. The

learned senior advocate for the Municipality submitted that in

these actions the Legislature has provided with other acts that it

will be lawful for the Municipality even to discontinue or stop up

any public street. (emphasis supplied).

The learned senior advocate for the Municipality submitted that

besides conferring these powers the Legislature has provided that

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in addition to the aforesaid acts of the Municipality, the

Municipality will also have power to lease or sell any such land.

But then that power is made subject to the provisions of sub-

section (2) of section 65 of the said Act. The learned senior

advocate submitted that while so empowering, the Legislature has

clarified that, ‘the land which was theretofore used or acquired by

the municipality for the purpose of such streets’. In addition to

that, it is also provided by the Legislature that, ‘such land may not

be required for any public street or any other purpose of this Act’.

(emphasis supplied).


though the contents of the aforesaid section are in a sequence, but

then, much significance may not be attached to the same if it is

possible to cull out that all important aspects were present in the

mind of the Municipality while taking an action under section 146

of the said Act. The learned senior advocate for the municipality

submitted that if section 146 of the said Act is construed to mean

that acts set out in the sequence are to be performed in the same

sequence and no deviation in sequence is permissible then it is

likely to result into miscarriage of justice.

15. The learned senior advocate for the Municipality submitted

that it is undisputed that the Municipality has power to discontinue

or stop up any street. The learned senior advocate further

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submitted that even the learned advocate for the petitioners cannot

deny that, ‘section 146 of the said Act empowers the Municipality

to discontinue or stop up any public street’. The learned senior

advocate for the Municipality submitted that it is only in the event

when Municipality decides to deal with the land of such street (the

street which is discontinued or which is stopped) by leasing or

selling then that is required to be done in accordance with the

provisions of sub-section (2) of section 65 of the said Act. The

learned senior advocate very emphatically submitted that section

146(1) of the said Act does stand of its own and it does not become

redundant in absence of the proviso. The proviso comes into play

only when the Municipality decides to lease or sell such land. If the

Municipality stops at the stage of ‘discontinuing a street or

stopping up a street’, the Municipality has not to do anything

further. Meaning thereby, neither sub-section (2) of section 65 nor

the procedure prescribed in the proviso is required to be taken into

consideration.

16. The learned senior advocate for the Municipality

emphatically submitted that even at the cost of repetition he will

like to submit that the power conferred under section 146 of the

said Act is the absolute power and it is in consonance with the

objects for which the Constitution is amended in the year 1992.

The learned senior advocate submitted that in the year 1992, Part 9

of the Constitution pertaining to Panchayats came to be amended

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and Articles 243A to 243ZG came to be inserted. The learned

senior advocate submitted that it will be appropriate at this stage

to look into Article 243-P, which is in Part 9-A pertaining to

Municipalities. The learned senior advocate submitted that in

clause (e) of Article 243-P ‘Municipality’ is defined as, ‘an

institution of self government constituted under Article 243-Q’.

The learned senior advocate submitted that the very fact that the

Municipality is recognized as ‘an institution of self government’

strengthens his submission that, ‘section 146 of the said Act

confers absolute power on the Municipality’. The learned senior

advocate then invited attention of the Court to Article 243W, which

provides for “Powers, authority and responsibilities of

Municipalities, etc.”

The learned senior advocate invited attention of the Court to Sub-

Article (a), which reads as under :

(a) the Municipalities with such powers and authority

as may be necessary to enable them to function as

institutions of self-government and such law may

contain provisions for the devolution of powers

and responsibilities upon Municipalities, subject

to such conditions as may be specified therein,

with respect to--

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(i) the preparation of plans for economic

development and social justice;

(ii) the performance of functions and the

implementation of schemes as may be entrusted to

them including those in relation to the matters listed in

the Twelfth Schedule;” (emphasis supplied)

At this juncture the learned senior advocate invited attention of the

Court to 12th Schedule also. Twelfth Schedule is mentioned with

Article 243W of the Constitution of India. Item No.13 of that

Schedule is, “Promotion of cultural, educational and aesthetic

aspects”. The learned senior advocate submitted that the present

is the case wherein Gadhda Municipality, while discharging its

duties and functions as an institution of self-government considered

the applications submitted by respondent no.4-Trust and having

found the same to be in public interest, passed Resolution No.94/17

on 12.07.2004 and then public notice was issued in ‘Saurashtra

Samachar’ dated 24.07.2004, inviting objections and after taking

into consideration those objections passed Resolution No.137/21

dated 30.05.2005. The learned senior advocate submitted that

looking to the contents of Resolution dated 12.07.2004, notice

dated 24.07.2004 and Resolution dated 30.05.2005, it cannot be

said that the Municipality has acted for any extraneous

consideration.

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The learned senior advocate submitted that the things would have

been in a different complexion if the land in question was given to

any private individual or to any such institution, which is to indulge

in profiteering activities. The learned senior advocate submitted

that in these days of ‘Public Private Partnership’ (PPP) model,

Municipality cannot be said to have acted in an arbitrary or

unreasonable manner. The learned senior advocate submitted that

it may not be understood that he is arguing on behalf of respondent

no.4, he may be allowed to reiterate the various activities of

respondent no.4-institution which constitute a major bulk of

activities of an institution of local self government. The learned

senior advocate submitted that to start with he may be permitted to

refer to the activities respondent no.4-institution has set out in

Annexure ‘D’ (Collectively). The learned senior advocate for the

Municipality submitted that the Municipality has nothing to do

with the level at which respondent no.4-institution is working

because it is mentioned in the applications that respondent no.4 is

a world level institution, having its activities world over. Its

activities are going on not only within the State of Gujarat but in

various parts of the country and in many foreign countries in the

form of constructing ‘Sanskar Dham’. The activities mentioned in

the opening para, titled as ‘the activities of the institution’, include-

(i) To cultivate culture (Sanskar) for children and youth, to

cultivate culture (sanskar),

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(ii) De-addiction,

(iii) Change of life,

(iv) Eradication of illiteracy,

(v) Creating ‘Sadachari Samaj’

(vi) Anti-dowry campaign,

(vii) Activities pertaining to developing ‘sanskar’, ‘sheel’ and

character building in the members of the society.

(viii) Providing guidance for leading simple and ‘sadachar life’,

(ix) ‘Prabhat Pheri’ and ‘Padyatra’, and

(x) Plantation.

All these activities are carried out by young, well trained and well

educated saints of the institution in the form of running Local

Youth Mandal, Bal Mandal, Balika Mandal, Mahila Mandal, etc.

Besides that the institution has always responded to the call at the

time of natural calamity like drought, etc.

17. The learned senior advocate then submitted that there are

certain specific campaigns carried out by this institution, like

watershed scheme, literacy campaign, etc. The learned senior

advocate submitted that the demand for the land in question is for

the purpose of carrying on activities for the development of the

society. The learned senior advocate submitted that one cannot

lose sight of the fact that in respondent no.4, no person in his

individual capacity, is going to be benefited by grant of land in

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question. By the various activities of respondent no.4 the

‘members of the society’ and ‘the society as a whole’ are going to

be benefited. The learned senior advocate submitted that even if it

is not liked by somebody, the fact is that the institution-respondent

no.4 has grown to a size where no individual has remained

inevitable in any of the activities of respondent no.4. The learned

senior advocate submitted that nothing personal has weighed with

the Municipality in passing the resolution/s in favour of respondent

no.4 for granting the land in question.

18. The learned senior advocate then invited attention of the

Court to Resolution dated 12.07.2004. The learned senior advocate

submitted that if respondent no.3-Municipality was to act on any

extraneous consideration then it was not difficult for the

Municipality to camouflage its resolution, but instead the

Municipality maintained full transparency in its action. It has

recorded in Resolution dated 12.07.2004 in clear terms that,

‘respondent no.4 has made demand for the land in question for the

purpose of enhancing its objects’. The learned senior advocate

submitted that the resolution has taken note of the activities

carried out by respondent no.4, like eradication of illiteracy,

wherein saints of respondent- institution have helped Bhavnagar

district to achieve 100% result.

Coming to the objections part, the learned senior advocate

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submitted that the Municipality has referred to the applications

received even in the year 1999, 2001 and thereafter in 2004,

whereas the application of respondent no.4 was only in the year

2002. The learned senior advocate submitted that on the contrary

the action of respondent no.3-Municipality is required to be

appreciated in light of the fact that transparency was maintained in

the action taken by the Municipality. The learned senior advocate

submitted that not only that the Municipality did take into

consideration even the earlier communication/ letter received from

the Collector, Bhavnagar dated 18.12.2002, and communication

received from the Regional Director, Municipalities, Rajkot. It was

only after taking into consideration all the relevant material, it

decided to issue public notice and after issuing the public notice,

whatever objections were received the same were taken into

consideration at the time of passing of resolution bearing No.137/

21 dated 30.05.2005, which is the subject matter of challenge in

the present petition.

The learned senior advocate submitted that it is settled position of

law that such ‘resolutions’ are not to be analyzed as ‘judgements’

delivered by a trained judicial mind. Judgments are rendered by

trained judicial personnel and therefore, they are supposed to

answer every test which may be posed against such judgments

either by critics or by higher forum, but when it comes to examine

resolution, like the one which is under consideration in this matter,

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what is required to be looked into is ‘whether the Municipality was

acting bona fide’ . The learned senior advocate submitted that if

the answer is in affirmative, then minor irregularities, if any, or so

called procedural lapses, if any, on the part of the Municipality are

required to be condoned unless there is convincing proof of the

resolution having been motivated by extraneous consideration. The

learned senior advocate for the Municipality submitted that as

submitted hereinabove section 146 of the said Act confers absolute

power on the Municipality to ‘discontinue’ or ‘stop up’ any street.

The learned senior advocate submitted that if the Municipality

had only ‘stopped a street’, the provisions of subsection (2) of

section 65 of the said Acta or the contents of proviso to section 146

of the said Act would not have come into play. The learned senior

advocate submitted that to test the legality and validity of the

resolution of the Municipality, what is required to be taken into

consideration is whether the Municipality was aware of the

objections received in response to public notice dated 24.07.2004.

The learned senior advocate submitted that the very fact that

resolution dated 30.05.2005 was passed incorporating certain

conditions shows that the Municipality was alive to every single

objection and action was taken after fulfledged discussion in the

General Body Meeting. The learned senior advocate for the

Municipality submitted that it is a matter of record that Resolution

dated 12.07.2004 was passed by all 19 members present voting in

its favour, out of 21 members; Resolution dated 30.05.2005 was

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passed by all 18 members present voting in favour of the

resolution, our of 21 members. The learned senior advocate for

Municipality submitted that it is clearly stated in the resolution that

the ‘demand made by respondent no.4 is accepted despite

objections’. The learned senior advocate for the Municipality

submitted that the words used in vernacular are “Vandha sathe

vechan”, which mean “despite objections”. Any other meaning

given to this vernacular phrase does not make any meaningful

construction/ interpretation of the resolution.


other condition/s attached to acceptance of demand of respondent

no.4 is that respondent no.4 will have to provide a new passage

(road) adjacent to the gate in question (the gate is referred to as

Gadhadi gate). Not only that it is specifically mentioned that the

new passage/ road will have to be of the same width as that of the

present road. Last, but not the least the other condition attached

to acceptance of demand made by respondent no.4 is that the gate

near the vegetable market will be maintained in the same condition

in which it is existing today. The learned senior advocate for the

Municipality submitted that the learned advocate for the

petitioners has tried to give colour to the entire proceedings as if

respondent no.3-Municipality has obliged respondent no.4-

institution for ‘its own development’, whereas the phrase used is

‘Tena vikas na kamo na upyog mate’, which means ‘for the use of

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developmental activities of respondent no.4’ and it cannot be read

as ‘for development of respondent no.4 itself’. The learned senior

advocate for the Municipality submitted that it is possible to allege

that all these submissions are made on behalf of respondent no.4

itself. But then as it is submitted and clarified hereinabove, it is

again reiterated that the Municipality as an institution of ‘self

government’ having the ‘welfare of the town’ at its heart. It has

nothing to do with the internal rift in the relations of the petitioner

institution on one hand and respondent no.4-institution on the

other. The learned senior advocate for the Municipality submitted

that any independent person, if apprised of the facts of the case

will opine that the act of the Municipality cannot be said to be an

act motivated of extraneous considerations, more particularly in

light of the fact that the land in question given by the Municipality

is going to be used for developmental activities, which in Entry

No.13 of Twelfth Schedule of the Constitution of India, which is

added pursuant to Article 243W. Entry No.13 provides for

promotion of cultural, educational and aesthetic aspects. Any

independent person visiting Gadhda town coming to know about

activities of respondent no.4 will endorse the view that the

activities are in the nature of promotion of cultural, educational

and aesthetic aspects.

19. The learned senior advocate for the Municipality submitted

that incidentally the petitioner and respondent no.4 are the

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followers of the same sect. Both the groups are the worshipers of

Lord Swaminarayan. Every single devotee visiting the temple of

respondent no.4-institution visits Gopinathji Dev Mandir, which is

under the control of the petitioner. The reason for this conduct of

the devotees is simple. Lord Swaminarayan is the deity for both

the sects. Every single place or the object (material object) which

has memories attached to Lord Swaminarayan is pious for the

followers of Swaminarayan sect. May be, for certain factor/s the

petitioner, today is contesting grant of land in favour of respondent

no.4, alleging arbitrary and irregular act on the part of the

Municipality, but even petitioner cannot deny that respondent no.4

is a branch of same “Vrat Vriksha’. Taking into consideration the

sentiments attached in the issue, the matter was considered not

only by the Collector, but also by the Government and in its

threadbare analysis, neither the Collector nor the Government has

found anything wrong in the action of the Municipality. The

learned senior advocate for the Municipality submitted that the

Municipality is a body of councilor and fortunately, the resolution is

passed unanimously by the councilors present in the meeting as

mentioned hereinabove. Therefore, it is not possible for the

petitioner to make any personal allegation against any individual.

The learned senior advocate for the Municipality submitted that the

law is well settled on the question of interpretation of documents,

like the resolution which is the subject matter of challenge. Even

at the cost of repetition, the learned senior counsel submitted that

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the resolution be read, ‘only as resolution’ and not a judgment

delivered by a judicially trained mind. No colours, no complexion,

no reading between the lines be attached to it, more particularly,

when the Municipality has not kept back, suppressed or omitted

any fact which had fallen for consideration of the Municipality at

the time of passing both the resolutions.

20. The learned senior advocate Mr.S.N. Shelat appearing for

respondent no.4-institution submitted that as such respondent no.4

is not required to justify resolution passed by the Municipality,

more particularly, when the learned senior advocate appearing for

the Municipality has already placed relevant material for

consideration of this Cort, but as the allegations are made against

respondent no.4- institution, it is duty bound to explain the same

and place before this Court the relevant material so as to convince

on the point that the action of the Municipality, in no way, can be

said to be ‘colourable exercise of power’ and cannot be said to be

‘an act of favouring respondent no.4 for any extraneous

consideration’.

The learned senior advocate for respondent no.4 submitted that as

it is a charitable trust. It is an organization having its activities

spread worldwide. Besides various activities of social service,

respondent no.4 is mainly concentrating on moral, cultural and

social activities. The activities pertaining to health, education and

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environment are also its centre of focus. Besides, respondent no.4

does not miss any opportunity to work for upliftment of tribals and

relief work in the event of natural calamities. The learned senior

advocate for respondent no.4 submitted that last but not the least

the activities for the overall good of women, children and youth are

the activities which require special mention when one refers to the

activities carried out by respondent no.4. The learned senior

advocate for respondent no.4 invited attention of the court to the

compilation placed on record in support of the aforesaid

submissions. The compilation contains descriptive as well as

pictorial plates to depict the activities carried on by respondent

no.4-institution. The learned senior advocate for respondent no.4

submitted that though according to Hindu mythology ‘any good

deed done either by an institution or an individual is not to be

mentioned’, more particularly in public, because, it is believed that

once such mention is made, the person loses ‘punya’ arising from

such pious act. The learned senior advocate for respondent no.4

submitted that all these submissions of mentioning activities are

made with reluctance, because respondent no.4 does not believe in

self praise and does not want to give a feeling to any one that by

these activities respondent no.4 has obliged anybody. In fact,

respondent no.4 is of confirmed opinion that by doing all these

activities it has not done anything else than discharge of its duties.

The learned senior advocate for respondent no.4 submitted that in

fact respondent no.4 strongly believes that funds flowed in corpus

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of respondent no.4 are of the society at large and it must be spent

for the benefit of the society at large. The learned senior advocate

for respondent no.4 submitted that saints of respondent no.4-

institution see that minimum possible is spent on them or that they

take the least possible for their consumption as against that these

saints make larger contribution in the form of taking responsibility

of various campaigns and activities of the institution so as to see

that they pay back their debt to the society. The learned senior

advocate for respondent no.4 invited attention of the Court to the

affidavit in reply filed in Special Civil Application No.14517 of

2006. It is affirmed by one Shri Harish Dave, General Secretary

and Constituted Attorney of respondent no.4. The learned senior

advocate for respondent no.4 reiterated his request that

submissions made by him be not treated as self praise of

respondent no.4. The learned senior advocate submitted that

absence of any submission may lead to misunderstanding that the

case of respondent no.4 is devoid of any merit. The learned senior

advocate submitted that he is confident of the fact that at the end

of the day on careful scrutiny, the Court will come to the conclusion

that the resolutions passed by the Municipality are not vitiated on

any ground/s.

To mention one of the relevant aspects of the matter he invited

attention of the Court to para 4.3 of the affidavit in reply, wherein

it is stated that,

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“ .. .. Apart from giving financial

contributions in construction and development of basic

services and infrastructure of Gadhda Town (i.e. roads,

cremation centre, animal welfare centre, prayer hall in

the girls school), respondent no.4 has constructed the

‘Welcome Gate’ of Gadhda Town, the new vegetable

market and with government aid, the 100 million liter

capacity water reservoir – Akshar Ghaat. .. ..”

(emphasis supplied)

The learned senior advocate submitted that this is one of many

activities carried on by respondent no.4. Para 4 sets out the

background and the activities of respondent no.4 in detail and if

not all, at least some of those activities do require mention so as to

make it at least one thing clear that respondent no.4 is in no way

an institution controlled by an individual, or any ‘body’ or group of

persons. Similarly, no particular ‘individual’ or group of individuals

is benefited by the activities of respondent no.4- institution which

are at a very large scale.

The learned senior advocate for respondent no.4 submitted that it

will be appropriate to invite attention of the Court to para 5 of the

reply, which pertains to petitioner no.1 and respondent no.4 – a

comparison of two.

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“5. Both the petitioners and respondent no.4

espouse, practice and propagate the religion

established by Lord Swaminarayan, and have their

respective temples and properties in different locations

in the town of Gadhda. While being devotees of Lord

Swaminarayan, the petitioners and respondent no.4

have different ways of worship and ideology. However,

the petitioners and and respondent no.4 share the

same emotional attachment towards Gadhda town.

Lord Swaminarayan resided in Gadhda for more than

25 years (1805 – 1830 AD]. Therefore, Gadhda is the

most sacred pilgrim place of the Swaminarayan

Sampraday and is recognized as a great Tirthdham and

tourist destination. In fact, State of Gujarat,

respondent no.1 has promoted Gadhda for religious

tourism. (emphasis supplied)

5.1 The Gopinathji Dev Temple of petitioner no.1 is

situated at a distance of approximately 225 meters

away from the temple complex of respondent no.4. A

map showing the distance between the temple complex

of petitioner no.1 and the temple complex of

respondent no.4 is annexed hereto and marked as

ANNEXURE ‘R-10’. A photograph of Gadhda town

identifying relevant locations is annexed hereto and

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marked as ANNEXURE ‘R’-11’.”

The learned senior advocate for respondent no.4 submitted that

coming to the contentions raised by the learned advocate for the

petitioner it will be appropriate to mention that earlier the

petitioners had preferred Special Civil Application No.12600 of

2005 before this Court challenging the very same resolution dated

30.05.2005, which was disposed of by this Court by order dated

04.07.2005 by observing that as final decision is not taken by the

concerned authority, viz. State of Gujarat on resolution dated

30.05.2005, it is not necessary to entertain the petition. The

Hon’ble Court was pleased to direct that final decision which may

be taken by the concerned authority- respondent no.1, with respect

to resolution of respondent no.3 dated 30.05.2005, shall not be

implemented for a period of 15 days of its communication to the

petitioners. A copy of the said order is placed at Annexure R-19 to

this petition. The learned senior advocate for respondent no.4

submitted that the petitioner then preferred an application under

section 258 of the said Act before the Collector, Bhavnagar-

respondent no.2 herein, on 26.09.2005.

The learned senior advocate for respondent no.4 submitted that the

Collector, Bhavnagar considered the application under section 258

of the said Act, wherein the learned advocate appearing for the

petitioner and other objectors made their submissions and the

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Collector, Bhavnagar, after considering the contents of application

dated 26.09.2005 and submissions made on behalf of Gadhda

Municipality, respondent no.3 and the petitioners, rejected the said

application by order dated 27.06.2006. The learned senior advocate

for respondent no.4 submitted that it is a matter of record that at

the time of deciding the application (Appeal under section 258 of

the said Act), the Collector, Bhavnagar had given personal hearing

on different dates, viz. 02.08.2005, 28.04.2005, 21.09.2005 and

05.10.2005 to all the concerned parties, which included the

petitioner.


thereafter, the petitioners filed Special Civil Applications No.23329

of 2005, 23331 of 2005 and 23332 of 2005, before this Court which

came to be disposed of by this Court vide order dated 24.01.2006

directing the respondent-State of Gujarat to issue suo motu notice

to all concerned- interested parties and thereafter take appropriate

decision as regards validity of resolution passed by respondent

no.3-Gadhda Municipality. The learned senior advocate for

respondent no.4 submitted that copies of memo of petition and

order disposing of these petitions are annexed at ANNEXURE ‘R-

21’.


fact, the contention raised by the learned advocate for the

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petitioner that the resolution passed by the Municipality on

30.05.2005 is vitiated on the ground that ‘the Municipality did not

give an opportunity of hearing to the objectors including the

petitioner and that it did not consider the objections filed by

various persons,’ is not tenable in law inasmuch as at the time of

disposing of Special Civil Applications No.23329 of 2005, 23331 of

2005 and 23332 of 2005, the Court had given specific direction to

respondent no.1 to issue suo motu notice to all the concerned

parties and thereafter an appropriate decision was to be taken by

respondent no.1. The learned senior advocate for respondent no.4

submitted that the State of Gujarat- respondent no.1 herein, after

giving full opportunity to all the interested parties rejected the

objections by its order dated 27.06.2006 and upheld the resolutions

of the Municipality (dated 30.05.2005). A copy of the order passed

by the State of Gujarat dated 27.06.2006 is placed at Annexure R-

23 to the petition.

21. The learned senior advocate for respondent no.4 invited

attention of the Court to para 6.14 of the reply and submitted that

from the following it is clear that the State Government did

undertake the required exercise as was directed by this Court by

order dated 24.01.2006 to issue suo motu notice to all the

concerned parties and thereafter to take appropriate decision with

regard to the validity of the resolution passed by the Municipality.

Para 6.14 reads as under:

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“6.14 The State of Gujarat, Respondent No.1, by

its Order dated 27.06.2006 had upheld the order dated

26.10.2005 of the Collector, Bhavnagar as being proper

and legal and inter alia held that:

a) Section 148 of the Gujarat Municipalities Act, 1963 is

not applicable. It is not an acquired private road

declared as a public street handed over by the Gadhda

Municipality, Respondent No.3.

b) The said road is not of the ownership of the

District Panchayat.

c) The Gadhda Municipality, Respondent No.3 had

unanimously passed the Resolution under Section

146(1) of the Gujarat Municipalities Act,1963.

d) No right of egress and ingress was affected of any of

the objectors since there was an alternate road.

e) There is an availability of access to all the properties.

The property bearing City Survey No.3281/1 of the

Petitioner had an egress and ingress from other,

separate, main roads and therefore, no prejudice is

caused to all the properties abutting the three roads.

f) All the properties abutting the three roads were owned

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by Respondent no.4 and therefore, right of way to any

resident is not affected.

g) The Municipality, after issuing the public notice of 30

days under Section 146(1) of the Gujarat Municipalities

Act in the newspaper and after receiving the objections

and having considered the said objections, took the

appropriate decision and the said decision has been

confirmed by the Collector, Respondent No.2, under

Section 258 of the Gujarat Municipalities Act. The right

of ingress and egress to the property of the objectors is

not affected and when it is not affected, then the

decision taken by the Municipality in the interest of

village Gadhda does not require interference. The

elected representatives have passed the decision

unanimously keeping in mind the public interest, and

ordinarily, the said decision is to be given priority.

Especially when the decision taken by the Municipality

is as per the provisions of the law, it would be just and

proper in the public interest to confirm the same.”

23. The learned senior advocate for respondent no.4 submitted

that besides the aforesaid facts what is required to be mentioned is

that,

(i) State of Gujarat granted permission for sale by order

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dated 29.01.2007,

(ii) the said land was granted/ allotted to respondent no.4 at

the prevailing market price, and respondent no.4 was

asked to pay a sum of Rs.17,24,738/- for purchase of the land

in question. Respondent no.4 has paid the amount on

21.02.2007,

(iii) the Collector, Bhavnagar, respondent no.2 herein has

passed order under section 65(2) of the said Act, granting

permission to sell the land in question to respondent no.4

with a direction to respondent no.3-Municipality to execute

registered sale deed by order dated 02.03.2007.

(iv) Gadhda Municipality, respondent no.3 executed

registered sale deed bearing No.185/ 2007 dated 07.03.2007

in favour of respondent no.4 and put respondent no.4 in

possession of the lands in question. The learned senior

advocate for respondent no.4 submitted that thus, the entire

transaction is already completed on 07.03.2007.

(v) The learned senior advocate for respondent no.4

submitted that thereafter respondent no.4 has obtained

necessary permission for construction and development of

the land in question which was granted on 03.06.2008. The

learned senior advocate for respondent no.4 submitted that

today, a free medical care centre, women’s empowerment

centre and anti-addition centre, environment awareness

centre along with intricately carved majestic stone gate have

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been constructed on the land in question. All these

developmental works have been undertaken by spending a

huge amount of Rs.2 crores (approximately).

The learned senior advocate for respondent no.4 submitted that as

such learned senior advocate for respondent no.3- Municipality has

already made his submissions on the question of interpretation of

section 146, proviso to section 146, subsection (2) of section 65 of

the said Act and also Articles 243P and 243W of the Constitution of

India and Entry 13 of Twelfth Schedule of the Constitution of India,

he be permitted to adopt those submissions. The learned senior

advocate for respondent no.4 submitted that in addition to that he

will like to invite attention of the Court to the fact that after the

learned Single Judge of this Court gave direction to the State of

Gujarat- respondent no.1 to consider the question of ‘traffic’ and

the question whether ‘any hindrance would be caused if procession

was to be taken out from the main road while considering the

proposal under section 65 of the said Act’, the petitioner had filed

Letters Patent Appeals No.122 of 2007 and 123 of 2007 before

Division Bench of this Court, which were dismissed by this Court by

order dated 30.11.2007, holding that since all the authorities have

considered the objections of the petitioners and that the learned

Single Judge had also considered the merits of the matter and that

the resolution was held to be legal and valid, there is no reason to

entertain these appeals and interfere with the judgement and order

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of the learned Single Judge.


petitioner did not rest there and filed review application before

Division Bench which too came to be rejected by order dated

28.01.2008.


that it is thereafter that the petitioners approached the Hon’ble the

Apex Court by filing Civil Appeals No.1529-1530 of 2009 and 1593-

1594 of 2009 and SLP No.1562-1563 of 2009, wherein the Hon’ble

the Apex Court passed an order pursuant to which the hearing of

these matters is to take place before this Court.

The learned senior advocate for respondent no.4 submitted that to

see that impression is not created that any breach is committed by

by respondent no.4 in the matter of developing the land in

question, relevant facts are set out in para 7.8 of the reply. The

same are reproduced hereunder for ready perusal.

“7.8 During the pendency of these Civil Appeals, the

Supreme Court had passed an interim order by its

order dated 20.02.2009 granting leave to the

petitioners and ordering that “There shall be not

construction of any additional structure in the area

which were earlier roads”. By its order dated

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10.04.2012, the Hon'ble Supreme Court has set aside

the Order dated 02.09.2006 of the Learned Single

Judge and Order dated 30.11.2007 of the Division

Bench of this Hon'ble Court inter alia on the ground

that they proceeded to decide the Writ petition under

Article 227 of the Constitution of India instead of

Article 226 thereof under which it was filed. The

Hon'ble Supreme Court remanded the present SCAs to

this Hon'ble High Court to be heard by the Division

Bench thereof along with L.P.A.No.608 of 2008 by July

15, 2012. By its Order dated 10.04.2012, the Hon'ble

Supreme Court continued the status quo in respect of

the lands of former three roads to be maintained by all

parties until the decision of the Hon'ble High Court and

further held that no application for the interim relief

shall be entertained by this Hon'ble High Court. A copy

of the Order dated 10.04.2012 of the Hon'ble Supreme

Court is annexed hereto and marked as Annexure”R-

27”.”


that the learned advocate for the petitioners during the course of

submissions made certain submissions which are not borne out

from the record and the same are specifically replied by

respondent no.4 in para 8 of its affidavit in reply. The contents of

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para 8 are reproduced hereinbelow:

“8. I submit that the petitioners are falsely claiming:

a. “Moti Deli which is also prasadi dev sthan sand is

of the ownership of petitioner no.1 trust.”

(Paragraph 3.8 at page 8 of the instant SCA)

In fact Moti Deli is substantially owned by respondent

no.4. No part of Moti Deli is owned by petitioner no.1.

(emphasis supplied)

A copy of English translation of the Index-II of the

documents of title of the answering respondent in

respect of Moti Deli is annexed hereto and marked

collectively as Annexure “R-28”.

b. “The said place (Moti Deli) is known as Raghav

Mandir”.

(Paragraph 3.8 at page 8 of the instant SCA)..

In fact, Moti Deli is not Raghav Mandir. The two are

completely different properties situated at a distance of

about 250 feet from each other. A photograph of

Gadhda town identifying relevant locations is annexed

hereto and marked as ANNEXURE ‘R-11’. In fact,

Raghav Mandir (property) is in a dilapidated condition,

without a roof or shrine is infested with wild growth

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and remains unused for the past many decades.

Photographs of Raghav Mandir (property) are

collectively annexed hereto and marked as Annexures

“R-29-A”, “R-29-B” and “R-29-C” respectively.

Over and above the main access to Raghav property is

not from Road No.2, but is from Memon Fali which lies

towards the east of Raghav property. This entrance

remains open. The ingress and egress to Raghav

property is absolutely possible as on the date as it was

prior to the discontinuance of the said roads. A copy of

the map of Gadhda town showing the main access road

to Raghav property annexed hereto and marked as

Annexure “R-30”.

c. “The notice does not disclose the fact that

respondent no.3 municipality wants to close down the

road.”

(Para 3.18 at page 16 of the instant SCA)

In fact, the public notice published in the Saurashtra

Samachar on 24.07.2004 clearly states, “since the said

roads are required to be closed permanently for ingress

and egress”. That the notice’s clear words were

understood to mean the same is also evident when

considering the affidavits and objections submitted by

the petitioners during the legal process of the last six

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years in which they have continually opposed not just

the sale but the closure of the roads.”


that one important factor which is required to be taken into

consideration by this Court is that the petitions are required to be

considered as the petitions filed under Article 226 of the

Constitution, because earlier petitions filed by the petitioners were

considered under Article 227 of the Constitution and the Hon’ble

the Apex Court by its order made clear that the petitions be heard

by Division Bench and as the learned Single Judge by order dated

02.09.2006 and Division Bench by order dated 30.11.2007 have

proceeded to decide the writ petitions under Article 227 of the

Constitution of India, the same should be decided treating the same

to be under Article 226 of the Constitution. The learned senior

advocate for respondent no.4 submitted that the crucial material

which is required to be considered while considering these

submissions under Article 226 of the Constitution is the material

pertaining to a question “whether the roads in question are holy

(Prasadi) roads or not” and “whether any religious sentiments are

attached to these roads”. The learned senior advocate for

respondent no.4 submitted that the aforesaid two contentions

raised by the petitioner stand answered by voluminous literature

published by the petitioner-trust itself. The learned senior

advocate for respondent no.4 submitted that it is a matter of record

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that almost every single activity of Lord Swaminarayan while he

was in Gadhda town, is recorded and the literature containing

those details is published by the petitioner trust itself. The learned

senior advocate for respondent no.4 submitted that in this regard

contents of para 9.2 of the affidavit in reply are very important and

material. Para 9.2 reads as under:

“9.2 Respondent No.4 hereby refutes the claims of the

Petitioners as follows.

The Swaminarayan scriptures minutely describe the

roads Lord Swaminarayan travelled through in Gadhda,

including his route to the Ghelo River. However, none

of the three roads claimed by the Petitioners as

“Prasadi (holy) roads” are mentioned in any of the

scriptures, whereas the nearby road that accesses the

Ghelo River through Gadhadi Gate is often mentioned.

RESEARCH & FACTUAL FINDINGS:

A thorough study of 24 Swaminarayan scriptures (more

than 20,000 pages), the Petitioner Trust's own

publications and old authentic maps definitely shows

that the three roads claimed as holy by the Petitioners

did not exist in the time of Lord Swaminarayan. The

studied materials do not describe or mention the roads

while mentioning hundreds of other holy places

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including the road passing through the Gadhadi Gate.

Indeed, that road is mentioned numerous times as a

road ofter used by Lord Swaminarayan.

1. Swaminarayan Scriptures:

24 scriptures totaling more than 20,000 pages,

including texts published by the Petitioner Trust

a. Shri Durgapur Mahatmya, a Sanskrit scripture

exclusively on the glory of Gadhda, written by the

first Acharya of the Swaminarayan Sampraday's

Vadtal Diocese Shri Raghuvirji Maharaj (1812-

1863 AD), a contemporary of Lord

Swaminarayan, republished in Gujarati as

recently as 2006 AD by the Petitioner-Gopinath

Dev Mandir Trust, Gadhda. The scripture cites

approximately 600 unique prasadi (holy) locations

of Gadhda ranging from hills, mounds, stone

memorials, homes, trees, wells stables,

streamlets, roads, paths, foot trails and even a

cactus fence; but does not mention even one of

the former roads in question. Annexed hereto and

marked as Annexure “R-31” is the summary of

the research from Shri Durgapur Mahatmya.

b. In fact, the scriptures clearly show the road

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passing through the Gadhadi Gate as the real

prasadi (holy) road. At least five (5) such

references are found in Shri Haricharitramurt

Sagar, written by Adharanand Swami, a

contemporary of Lord Swaminarayan, who lived

in Gadhda. A summary of this religious text and

translations of 2 references are annexed hereto

and marked as Annexures “R-32”. A map

identifying Lord Swaminarayan's route through

Gadhadi Gate to the Ghelo River is annexed

hereto and marked as Annexure”R-33”.

c. Akshardham Shri Gadhpur Darshan, a photo

booklet published as recently as 2008 by the

Petitioner trust describes the prasadi (holy)

objects and places of Gadhda. This photo booklet

too does not mention any of the three roads in

question. Annexed hereto and marked as

Annexure “R-34” is the one page summary of

findings from this booklet.

Respondent No.4 craves leave to refer to and rely

upon these and other scriptures as may be

required or produced.

2. Maps

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None of the authentic, government-certified maps,

including from the State Archives at Bhavnagar, show

any of the three roads in question.

a. Dated 1869 AD, a map drawn 39 years after the

Lord Swaminarayan left for his heavenly abode

(1781-1830 AD), shows only two roads entering

Gadhda Town through Gadhadi Gate and Khopala

Gate from the riverside but does not show the

three roads in question. A copy of the said map of

the year 1869 AD is annexed hereto and marked

as Annexure “R-35”.

b. Dated 1878 AD, Gadhda town's map clearly

shows the single road through the Gadhadi Gate

but does not show any of the three roads in

question. A copy of the said map of the year 1878

AD is annexed hereto and marked as Annexure

“R-36”.

c. Dated 1886 AD, the map shows only two entrance

gates of Gadhda town from the riverside but does

not show the three roads in question. A copy of

the said map of the year 1886 AD is annexed

hereto and marked as Annexure “R-37”.

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d. Respondent No.4 craves leave to refer to and rely

upon other maps as may be required or produced.

3. Historically

a. Gadhda town had a fort protecting the town's

southern border along the Ghelo River. There

were only two roads through two gates namely

Gadhadi Gate and Khopala Gate going in and out

of the Gadhda town from the Ghelo riverside. This

fortress, strategically built surrounding the

village and on the hillock, was in existence at

least until 1830 AD during Lord Swaminarayan's

time (1781 AD to 1830 AD). When there is a

fortress wall in between Gadhda town and the

Ghelo River with only two gates (namely Gadhadi

Gate and Khopala Gate) as entry and exit points,

then how can there be another road through the

fortress right next to one of the gates? Thus,

during Lord Swaminarayan's time, the disputed

roads through the fortress wall simply could not

have existed. An artist's rendition of Gadhda

town's fortress wall during Lord Swaminarayan's

time is annexed hereto and marked as Annexure

“R-38”.

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4. Thus, sound historical evidence from both scriptural

references and authentic maps proves that the three

roads in question did not exist during Lord

Swaminarayan's lifetime (1781 AD to 1830 Ad) and not

for many years after Lord Swaminarayan's passing and

not even until last century. If these roads were not in

existence, then the claim of the Petitioners that these

roads were in fact travelled upon by Lord

Swaminarayan is also evidently false and

unsustainable.

5. Furthermore, the Petitioners' lack of any reference

about the three (3) Roads as Prasadi (holy) in their own

publications (prior to the legal dispute), establishes

that they do not truly have any religious significance.”


may not be treated as an adversarial submission, but at the same

time it is required to be placed on record and pointed out to the

Court that all the properties which now belong to respondent no.4

were earlier belonging to the petitioner and with passage of time

they came to be sold to respondent no.4 and today, they are owned

by respondent no.4. This is mentioned with a view to show that

petitioner no.1 was never keen about the ownership of the

properties or rights attached to such properties. Similarly, there

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are certain other ‘Prasadi’ objects, like the place where Lord

Swaminarayan used to sit, used to hold meetings. Similarly, other

places where various activities were carried on by Lord

Swaminarayan are not maintained by the petitioner. The learned

senior advocate for respondent no.4 made it very clear that this is

only with a view to show that many a time religious sentiments

have to give way to the pressing need for development. In this

regard he invited attention of the Court to para 13.1 of the affidavit

in reply which is reproduced for ready perusal:

“13.1 The map of Gadhda town of the year 1923

AD issued by Gadhda Municipality, Respondent No.3

shows the “C”- shaped road (coloured in brown for

identification) to the east of the temple complex of

Petitioner No.1 Lord Swaminarayan regularly traveled

on this road. There were several places sanctified by

Lord Swaminarayan surrounding this road. Petitioner

No. 1 has destroyed these sacred places, has built

commercial and residential buildings in their

place, and has rented them to tenants for

monetary gain. Petitioner No. 1 also destroyed this

holy road to develop its own complex. A map, issued by

Gadhda Municipality, Respondent No.3, of 1923 AD

showing the “C” shaped road (coloured in brown for

identification) to the east of the temple complex of

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Petitioner No.1 is annexed hereto and marked as

Annexures “R-45-A” and “R-45-B”. Hence, Petitioner

No.1's claim that the roads in question should be

preserved due to their sanctity is based on false

premises, 'faulty logic and is not even concurrent with

Petitioner No.1's own practices.” (emphasis supplied)

The learned senior advocate for respondent no.4 also made it clear

that this submission be not treated or taken to be an admission on

the part of respondent no.4 about the roads in question being

‘Prasadi’ road or having undetachable religious sentiments of the

devotees. He submitted that this is only a humble attempt on the

part of respondent no.4 to bring on record the conduct of the

petitioner on the aspect of giving undue emphasis to the road by

saying that it is Prasadi road and therefore, the same cannot be

stopped by the Municipality howsoever good be the object for

alienating those roads in favour of respondent no.4. Annexures R-

45-A and 45-B are annexed to this judgment.

25. The learned senior advocate for respondent no.4 next

submitted that what is important is that it is the claim of the

petitioners that the roads in question were en route ‘Jal Jilni’

procession. The learned senior advocate for respondent no.4

submitted that it is borne out from the authentic literature

published by the petitioner-trust that during the lifetime of Lord

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Swaminarayan, ‘Jal Jilni’ festival was celebrated only on five

occasions at five different places. Therefore, to claim that it was

annual procession taken out every year on the same route is far

from truth. In this regard, the learned senior advocate for

respondent no.4 invited attention of the Court to para 10, which is

reproduced hereunder:

“10. The Jal Jilni festival does not have to be a fixed

route and I deny that the Jal Jilni festival papalishas

always passed only through the disputed road as

alleged. Primarily, the festival is focused around Jal-

water. The murti of Thakorji is carried in a boat and

bathed in water amidst religious ceremonies. The

palkhi yatra is the route to the river which can be any

route as long as one reaches a river or a water body.

Even in the times of Lord Swaminarayan. He himself

celebrated Jal Jilni at five (5) different places using

different routes in Gadhda town. Evidence from

scriptural references from Shri Durgapur Mahatmya,

Gopinath Dev Mandir Trust's own publication, shows

that the Jal Jilni Ekadashi festival was celebrated in

five(5) different locations by Lord Swaminarayan. The

map showing the different locations and their probable

routes is annexed hereto and marked as Annexure “R-

40-A” and a summary of findings from the Petitioner

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Trust's own publication showing five different places

for the Jal Jhilani festivals celebrated by Lord

Swaminarayan is annexed hereto and marked

Annexure R-40-B.

(1) North of Muktanand Swami's Cremation Site (this Jal

Jhilani location is approximately 1.5 kilometers east of

the disputed road where the Petitioners claim the Jal

Jhilani Festival always took place)-Shri Durgapur

Mahatmya, Adhyay 41

(2) Tungi Paat water body, west of Gadhda town (this Jal

Jhilani location is situated west of Gadhda town towards

Mandavdhar)- Shri Durgapur Mahatmya, Adhyay 39

(3) In front of “Somabai's Streamlet (this Jal Jhilani location

lies in the direction indicated by Marker No.3)-Shri

Durgapur Mahatmya, Adhyay 25

(4) Gadhadi Embankment (this Jal Jhilani location is

directly in front of Gadhadi Gate at the Ghelo

Riverside)-Shri Durgapur Mahatmya, Adhyay 40

(5) At Khadkhadiyo [today, “Purshottam Ghat” exists on

this Jal Jhilani location].-Shri Durgapur Mahatmya,

Adhyay 40

Respondent No.4 craves leave to refer to and rely upon

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these scriptures as may be necessary or produced.”


thus, it will be clear that the claim made by the petitioner of

attaching an unimpeccable sanctity to this road is not true. If it is

objectively considered what was important was the act of ‘Jal Jilni’

and not the route by which the procession for the same proceeded

to river Ghelo and returned from there.


fact, on careful study of the literature published by petitioner trust

and the present day situation prevailing in the campus under the

control of the petitioner itself, it can be noticed that as many as 63

holy places of ‘Prasadi’ are altered by the petitioner itself.


that to illustrate the aforesaid holy places and the road, it can be

seen by the instance of changing road which is in C-shape and

through which Lord Swaminarayan regularly travelled.

27. The learned senior advocate for respondent no.4 while

answering the contentions raised by the petitioner, particularly

about the existence of the road in question since time immemorial,

submitted that the submission is devoid of any truth, because the

very name of the town suggests that it was a ‘Gadh’ (fortress) and

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by necessary implication when there is a gadh there has to be a

specific gate for egress and ingress in the Gadhda town. The very

existence of ‘Gadhadi’ gate (the gate in question) and ‘Khapola’

gate are suggestive that they were provided for ingress and egress

to Gadhda town. It is with passage of time when there was no

maintenance of the fortress, its boundary must have started getting

collapsed, with which other pathways must have come into being

by usage of public. Be that as it may, the claim of the petitioner

about the road in question being in existence for the time

immemorial is not found to be logical and therefore, not worth

accepting by this Court.


that coming to the provisions of law, section 146 of the said Act

does confer power on the Municipality for doing certain things

enlisted in the section itself. It includes discontinuing and stopping

up of any public street. The learned senior advocate for

respondent no.4 submitted that section 146 is to be read as a whole

keeping in mind the object to be achieved by the section and in

doing so it is not necessary that the section should be interpreted

in the manner suggested by the learned advocate for the petitioner.


learned senior advocate for respondent no.3- Gadhda Municipality

has already made submission on the point, but he would like to

add that there need not be rigid sequence in which an action under

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section 146 of the said Act can be taken. It is nowhere suggested

that only a particular street can be discontinued or can be stopped

up. It is also nowhere suggested that the action of discontinuing a

street or stopping up of street can be done only after arriving at a

conclusion that public street is no more required for ingress and

egress of the public. The learned senior advocate for respondent

no.4 submitted that it is possible that once there is a demand like

the one which is made by respondent no.4, it may occur to the

Municipality to consider the question of discontinuing or stopping

up a street. If that happens it cannot be said that there is violation

of any part of section 146 of the said Act. The learned senior

advocate for respondent no.4 submitted that there is no violation of

any part of section 146 of the said Act. The learned senior

advocate for respondent no.4 submitted that there is no doubt

about the section being in two clear parts, viz. (i) empowering the

Municipality to take actions enlisted therein, and (ii) once any

street is discontinued or stopped up and if the Municipality wants

to deal with that land by leasing or selling it can be done only

subject to the provisions of subsection (2) of section 65 of the said

Act. Not only that the procedure prescribed under the proviso to

section 146 of the said act is also required to be followed, as a

condition precedent of leasing or selling that land. Even at the cost

of repetition he submitted that all actions cannot be put in a

sequence as suggested by the learned advocate for the petitioner

and therefore, the claim of the petitioner deserves to be rejected

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outright. The learned senior advocate for respondent no.4

submitted that the submission made by the learned advocate for

the petitioner that the Municipality without coming to a conclusion

that a particular street is not required by the public, it is to be

closed and after having reached to that conclusion the Municipality

ought to have recorded another conclusion that the said land is not

required for any public street or for any other purpose of this Act

and it was only thereafter that the Municipality could have resorted

to subsection (2) of section 65 of the said Act and the procedure

prescribed in the proviso should have been followed. The learned

senior advocate for respondent no.4 submitted that in the matter of

appreciation of legality and validity of the action of the

Municipality such a strict interpretation of any provision of law is

not required, more particularly such interpretation is going to

result into miscarriage of justice. (emphasis supplied).


that much hue and cry is raised by the learned advocate for the

petitioner on the point of non consideration of two of the objections

on the ground that the same were received beyond the time-limit.

The learned senior advocate for respondent no.4 submitted that all

those objections were made available by the learned advocate for

respondent no.3- Municipality and perusal of the contents of those

two objections show that the same were also before the

Municipality by way of one or the other objection received and

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considered by the Municipality, and therefore, applying the same

principle that ‘the objector must establish the prejudice caused to

him on account of non consideration of the objections’ has to be

applied and the aforesaid contention is to be held to be without any

substance. The learned senior advocate for respondent no.4 also

submitted that matter assumes significance, more particularly,

when the learned advocate for the petitioner is contending that,

‘the objections filed by a particular objector are not considered by

the Municipality’ because these objectors have not filed any

petition and have not challenged the action of the Municipality.


learned advocate for the petitioner also contended that the

ownership of the land in question was that of the District

Panchayat and not of the Municipality and therefore, the action of

the Municipality should be held to be illegal and without

jurisdiction. The learned senior advocate for respondent no.4

submitted that the said submission was required to be abandoned

by the learned advocate for the petitioner in light of the fact that

the Government had recorded a clear finding on the point that,

‘the land is of the ownership of the Municipality’. Besides that it is

a hard reality that the District Panchayat, as a body, has not come

forward to claim ownership of the land in question.


that the petitioner is taking all possible contentions out of

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frustration. At one stage it was contended that the roads were

‘private roads’ and therefore section 148 of the said Act is

applicable. But then the same was not pressed further after having

realised that the said contention is not tenable in law in light of the

facts of the case. This shows that the petitioner is out to take all

possible contentions without being mindful of the ‘substance’

therein.

31. The learned senior advocate for respondent no.4 did answer

the submission made by the learned advocate for the petitioner

about his ‘right to profess religion’ under Article 25 of the

Constitution of India. The learned senior advocate for respondent

no.4 submitted that Article 25 grants right to freedom of religion

and as is clear from the title, “freedom of conscience and free

profession, practice and propagation of religion”. The learned

senior advocate for respondent no.4 submitted that none of the

tenets of Lord Swaminarayan ‘Sampraday’ provide that if

procession on the day of ‘Jal Jilni Ekadasi’ does not return to

Gopinathji Dev Mandir, from the route mentioned by the petitioner,

it will amount to breach of right to profess that religion. The

learned senior advocate submitted that in fact, perusal of contents

of Article 25(1) of the Constitution makes it clear that right

conferred is subject to ‘public order’, ‘morality and health’ and ‘the

other provisions of this Part’. It nowhere says that any particular

ritual, in the present case, ‘return of procession’ taken out on the

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day of ‘Jal Jilni Ekadasi’ by a particular route can be put at part

with ‘tenets’ of religion and non compliance of it will amount to

violation of right to profess, practise and propagate religion. The

learned senior advocate for respondent no.4 submitted that

‘Shiksha Patri’ ‘Vachanamrut’ and ‘Satsangi Jivan’ are the basic

literatures providing required guidance to the devotees of

‘Swaminarayan Sampraday’. In none of these literatures, it is

provided that the procession taken out on “Jal Jilni Ekadashi’ shall

return to Gopinathji Dev temple only by the road in question. One

can understand that if the question raised by the petitioner

pertained to professing of religion and if that is not permitted to be

performed or professed, that may amount to breach of right to

profess religion. Fortunately, that is not the case and that is why

the claim of the petitioner that devotees of Swaminarayan

Sampraday are denied their right to profess religion is without any

merit and deserves to be rejected.

In support of his submission learned senior advocate Mr.Shelat

relied upon a decision of the Hon’ble the Apex Court in the matter

of The Commissioner, Hindu Religious Endowments, Madras

Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,

reported in A.I.R. 1954 SC 282. The learned senior advocate relied

upon the observations made in 19 of the said judgement, which

read as under:

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“19. The contention formulated formulated in such

broad terms cannot, we think be supported, in the first

place, what constitutes the essential part of a religion is

primarily to be ascertained with reference to the

doctrines of that religion itself, if the tenets of any

religious sect of the Hindus prescribe that offerings of

food should be given to the idol at particular hours of

the day, that periodical ceremonies should be

performed in a certain way at certain periods of the

year or that there should be daily recital of sacred texts

or oblations to the sacred fire, all these would be

regarded as parts of religion and the mere fact that

they involve expenditure of money or employment of

priests and servants or the use of marketable

commodities would not make them secular activities

partaking of a commercial or economic character; all of

them are religious practices and should be regarded as

matters of religion withing the meaning of Art.26(b).

What Art 25(2)(a) contemplates is not regulation

by the State of religious practices as such, the freedom

of which is guaranteed by the Constitution except when

they run counter to public order, health and normality

but regulation of activities which are economic,

commercial or political in their character though they

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are associated with religious practices.

We may refer in this connection to a few

American and Australian cases, all of which arose out of

the activities or persons connected with the religious

association known as “Jehova's witnesses”. This

association of persons loosely organised throughout

Australia, U.S.A. And other countries regard the literal

interpretation of the Bible as fundamental to proper

religious beliefs. This belief in the supreme authority of

the Bible colours many of their political ideas. They

refuse to take oath of allegiance to the king or other

constituted human authority and even to show respect

to the national flag, and they decry all wars between

nations and all kinds of war activities.

In 1941 a company of “Jehova's Witnesses”

incorporated in Australia commenced proclaiming and

teaching matters which were prejudicial to war

activities and the defence of the Commonwealth and

steps were taken against them under the National

Security regulations of the State. The legality of the

action of the Government was questioned by means of a

writ petition before the High Court and the High Court

held that the action of the government was justified and

that s. 116, which guaranteed freedom of religion under

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the Australian Constitution was not in any way

infringed by the National Security Regulation -'Vide 67

CLR 16 at P. 127(H)'. These were undoubtedly political

activities though arising out of religious belief

entertained by a particular community.

In such cases, as Latham C.J. Pointed out, the

provision for protection of religion was not an absolute

protection to be interpreted and applied independently

of other provisions of the Constitution. These privileges

must be reconciled with the right of the State to employ

the sovereign power to ensure peace, security and

orderly living without which constitutional guarantee of

civil liberty would be a mockery.”


that the offer of the petitioner to deposit not only the market price

paid by respondent no.4 for the land in question, but an amount

three times more than the same is of no significance. The learned

senior advocate submitted that it is a matter of record that

petitioner did not maintain all ‘prasadi items’ as it is which were

situated in the campus under control of the petitioner. Not only

that number of properties situated on the road in question are sold

away by the petitioner to the occupants of those properties.

During the course of the arguments the learned senior advocate for

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the petitioner showed the readiness to pay even three items price

paid by respondent no.4. The Court deemed it proper to put the

petitioner to test and therefore, the learned advocate for the

petitioner was asked to see that the petitioner deposits such

amount. At the time of passing of the aforesaid order it was made

clear to the learned advocate for the petitioner that by deposit of

amount, neither merit nor equities will tilt in favour of the

petitioner and the claim of the petitioner will not become

acceptable. At the request of the learned senior advocate for

respondent no.4, it is clarified even at the cost of reiteration that

the amount was ordered to be deposited only to test the bona fides

of the learned advocate for the petitioner ‘whether he is really

serious and sincere in making the submission’ or he is making it in

a casual manner. Separate directions are issued hereafter qua the

said amount at the end of this judgement and order.


that it was vehemently argued by the petitioner before the Hon’ble

the Apex Court that resolution passed by the Municipality is

irrational and arbitrary and therefore, violative of Article 14 of the

Constitution of India; that being so, the petitions ought to have

been entertained as a petition filed under Article 226 and not only

under Article 227 of the Constitution of India. The learned senior

advocate for respondent no.4 submitted that so far as the

submission that the resolution passed by the Municipality is

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irrational, arbitrary is concerned, the same is devoid of any merit

and liable to be rejected. Even on plain reading of resolutions dated

12.07.2004 and 30.05.2005, it is clear that the Municipality has

acted in all bona fides, within its jurisdiction conferred by section

146 of the Act. The Municipality was acting with a view to achieve

the public good, as the activities undertaken by respondent no.4

are akin to the activities contemplated under entry 13 of Twelfth

Schedule and Article 243W of the Constitution. For branding any

action to be ‘arbitrary’, one has to demonstrate as to in what

manner it is arbitrary. In the present case on receipt of application,

the Municipality in its general body unanimously decided that the

application be considered favourably and before doing that it

decided to follow the procedure prescribed, in pursuit thereof,

public notice was issued and objections were invited, received and

considered. The fact of objections were considered can be seen

from the fact that the grant of land is made subject to fulfillment of

certain conditions to see that the objections received by the

Municipality are taken care of. That being so, ‘bald assertion’ that

the resolution is arbitrary cannot be accepted being devoid of

merit.


that in the present case, the petitioner started its anti-respondent

no.4 campaign at least a decade ago. Petitioner has already

finished two rounds of litigation before this Court and the present

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one is the third round. The learned senior advocate for respondent

no.4 submitted that after having been to the Hon’ble the Apex

Court petitioner has one- point programme, viz. for a maximum

period hurdles and obstacles be created and activities of

respondent no.4 be hampered and stalled.

35. In Special Civil Application No.15460 of 2006, learned senior

advocate Mr.Mihir Joshi appears with Ms.V.D. Nanavati on behalf

of respondent no.4. The learned senior advocate submitted that

what is argued on behalf of respondents no.3 and 4 is adoptable to

him. The learned senior advocate submitted that in addition to

those submissions he will like to make the following submissions.

Section 146(1) of the Act, ‘no where contemplates that action of

discontinuing or stopping up street could be only qua unused or

redundant street’, He submitted that the exact words are, “ .. ..

discontinue or stop up any public street”. If what is submitted by

the learned advocate for the petitioner is to be accepted it would

amount to re-writing of the section and in place of word ‘any’, the

words, ‘unused/ redundant’ will be required to be read. The

learned senior advocate submitted that when the words used are,

“any public street’, it necessarily mean that it could be an old

street, new street, operative street, non-operative street, street

under use or unused street or a ‘redundant’ street. The language

of section 146 of the Act is very clear on this point and it conveys

only one single meaning that, ‘it is within the powers of the

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Municipality to discontinue or stop up ANY public street’. He

submitted that he need not repeat that, ‘the question of seeking

permission of the State Government under subsection (2) of section

65 arises only when the Municipality is to ‘lease or sell’ such land’.

The learned senior advocate submitted that the Municipality can

always discontinue any public street after following the procedure

prescribed for the same by law.

The learned senior advocate submitted that when there is no

separate/ specific decision is recorded on the question whether

“the land is required for any public street or for any other purpose

of this Act”, resolution of the Municipality is to be read as a whole

and if it is so read, it is clear that ‘the Municipality was of the

opinion that the land was not required as public street or it was not

required for any other purpose’ of this Act. Once that is so read

the controversy must come to an end. The learned senior advocate

submitted that he also adopts the submissions made by other

learned advocates made on the point of testing of action of the

Municipality on the anvil of section 146 of the Act. The learned

senior advocate submitted that the suggested sequence of reaching

to certain conclusions, by the learned advocate for the petitioner is

not ‘mandatory’. It is not in every case that the Municipality must

first record its decision that street is required to be closed and

thereafter, a decision that the street is not required for any public

street or for any purpose of this Act and then that the Municipality

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is intending to lease or sell this land. It may happen as it has

happened in this case that there could be a compact exercise on

the part of the Municipality. In the present case, on receipt of

application from respondent no.4, the Municipality deemed it

proper to discontinue the street for the purpose of giving the land

in question for ‘developmental activities’ of respondent no.4,

therefore, resolved to do so after following procedure prescribed

and hence issued public notice inviting objections and after

considering those objections, prescribed certain conditions before

allotting the land to respondent no.4. Taking all that together, it

cannot be said that the Municipality has committed any error in

passing the resolution to sell the land to respondent no.4. The

learned senior advocate, in support of his submissions

demonstrated the effect of the expression used or unused street

in section and similarly in the proviso. The learned senior advocate

then submitted that it does not convey an acceptable meaning, if

the words, ‘unused/redundant’ are read in place of ‘any’ in the

section or the proviso.

36. The learned senior advocate for respondent no.4 in Special

Civil Application No.15460 of 2006 submitted that even plain

reading of section 146(1) of the Act makes it clear that the section

confers absolute power on the Municipality and the said power is

not restricted or circumscribed. The legislature has provided a

procedure under the proviso which is to be followed. The learned

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senior advocate submitted that in light of the aforesaid

unambiguous provision of law, what is open for the Court is to

examine such act of the Municipality on the touchstone of

‘reasonableness’. Meaning thereby, whenever any public street is

discontinued or stopped it is to be seen whether that is done for a

purpose which can be said to be a ‘public purpose’ or not. If the

purpose is having a colour and complexion of private purpose, then

that act may not stand the test of legality and validity. The learned

senior advocate for respondent no.4 submitted that in the present

case it is clear from the application dated 12.07.2004 which is very

much referred to and mentioned in Resolution No.94/ 17 of the

Municipality dated 12.07.2004 and which is referred to without any

camouflage in Resolution No.137(21) of the Municipality dated

30.05.2005. It is mentioned therein that the land is given to

respondent no.4 for ‘its developmental activities’, which can

certainly be not equated with ‘its development’. Such

developmental activities are on record by way of contents of the

applications filed by respondent no.4 and by any test these

developmental activities are satisfying the test of being ‘public

purpose’. Entry 13 of Twelfth Schedule of the Constitution of India

makes it obligatory for the Municipality – an institution of self

government to promote culture, to promote education and to

promote aesthetic aspects. The learned senior advocate for

respondent no.4 submitted that he may not repeat the activities

carried on by respondent no.4- institution, but on taking stock of

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those activities it will not be possible for anybody to say that out of

various activities of respondent no.4, any single activity can be said

to be such which does not answer the test of public purpose. To

name a few, watershed, construction of check-dams, repairing of

ponds and check-dams, construction of new ponds, literacy

campaign, plantation, etc. For that reason any of the activities

carried on by respondent no.4 cannot be branded as an activity

benefiting a particular individual alone. It is meant for the society

as a whole and every member of the society is benefited by these

activities. In support of his submissions, learned senior advocate

for respondent no.4 placed reliance on various decisions of various

High Courts and the Hon’ble the Apex Court. The learned senior

advocate for respondent no.4 submitted that the Court is required

to consider the exact nature of right which is sought to be claimed

by the petitioner in the public streets in question. The learned

senior advocate for respondent no.4 submitted that in this regard

the observations made by the learned Judge of Travancore – Cochin

High Court in the matter of C. Philiph Vs. Travancore-Cochin

State and others, reported in A.I.R. 1952 Travancore – Cochin

274, will be relevant. The learned senior advocate for respondent

no.4 referred to para 8 of the said judgment wherein the learned

Judge has quoted judgment of Allahabad High Court in the matter

of Motilal Vs. Government of State of U.P. reported in A.I.R.

1951 Allahabad 257. The observations read as under:

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“It is well known, ‘right of public highway’ is merely to

pass and re-pass. Such right can be restricted at the

time of the dedication and whether the right is

restricted or not is generally established by the nature

of the user. The presumption generally is that the

dedication is for the ordinary and reasonable user of

the road as a highway.”

The learned senior advocate also referred to the following

observations:

“There can be no doubt, that so long as the road

exists as a highway, the general public will have the

right to use it for all legitimate purposes without

causing inconvenience or annoyance to others who are

using it. His Lordship also points out (vide page 268 of

the above report) that the right to use a highway is a

right which a person possesses as a member of the

public along with other members of the public, and

whatever personal rights he has of using it are merely

as such a member. That being so, the right has always

been held to be exercisable subject to such reasonable

restrictions or regulations, which, at times, might

even amount to prohibition, as might be necessary to

be imposed in public interest. In all civilized countries

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this right has been subject to regulations from very

early times.” (emphasis supplied)


para 10, there are observations made by the learned Single Judge,

which have direct bearing on the facts in the present case, which

read as under:

“10. Thus, it is obvious that the use of a public way

can be regulated by the State and for that purpose

reasonable restrictions can be imposed. Reasonable

restrictions may in some cases amount to complete

prohibition or stoppage of the use. The Court has

only to see whether that was in the interests of the

general public. In this case, the State acquired certain

lands adjoining the Women’s College at Trivandrum for

the purpose of opening a hostel for the students there.

The Women’s College is a public institution opened in

the interests of the general public. To accommodate the

students there, a college hostel had to be opened and

for the efficient and safe use of the hostel the

authorities found it necessary to close this pathway

between the hostel and the college. That is the

discretion exercised by the State and it is not a matter

that can be called in question by the petitioner.”

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(emphasis supplied)


that it is clear from the aforesaid observations that the rights

espoused by the petitioner exists only till the street exists. The

learned senior advocate for respondent no.4 submitted that it

cannot be contended by the petitioner that even when the

Municipality – institution of self government is of the opinion that

the land is required for public purpose, only with a view to see that

the petitioner is able to exercise his right to pass and re-pass,

street is maintained. The learned senior advocate for respondent

no.4 submitted that the Municipality as an institution for self

government is the best person (entity) to decide as to whether an

individual right of the petitioner (for that reason, it may not be

right of single individual, but it could be right of a group of persons

having their individual rights) or a public purpose is to be given

preference. The learned senior advocate for respondent no.4

submitted that in the present case, the Municipality unanimously

decided for discontinuing/ stopping up street and for that it invited

objections by issuing public notice and after taking into

consideration the objections received from the members of public

passed resolution dated 30.05.2005.

The learned senior advocate submitted that whenever any such

action of the Municipality falls for consideration of the Court, the

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Court has to test that action on the touchstone of reasonableness

and ascertain whether action is mala fide or overwhelmingly

unreasonable. The learned senior advocate for respondent no.4

submitted that subject to correction he has not come across any

allegations of mala fide in the petition. That being so, the action of

the Municipality is required to be upheld by this Court. The

learned senior advocate for respondent no.4 submitted that the

only expression used in the petition (Special Civil Application

No.14517 of 2006) in Ground (n) is that, “Hence, it is apparently

clear that all the decisions are politically motivated.” In Special

Civil Application No.15460 of 2006, the same phrase is used.


petitioner has made the aforesaid allegation without any basis. The

petitioner is not having any material to substantiate such serious

allegation, that is why he is not able to give any reason in support

of this bald allegation that action of the Municipality is politically

motivated. It is a matter of record that the resolutions were

passed unanimously as mentioned hereinabove.


that the resolution of the Municipality dated 30.05.2005 was

carried in appeal before the Collector under section 58 of the Act.

The Collector after careful examination of the appeal, rejected the

same by order dated 26.10.2005. Besides, the Government as per

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the order passed by this Court asking the Government to consider

the matter under section 261 of the said Act and by its order dated

27.06.2006 found no substance in the contentions raised by the

petitioner. The learned senior advocate for respondent no.4

submitted that with this, the controversy should have ended and

the petitioner ought to have accepted that the action of the

Municipality is not vitiated on any of the grounds raised by the

petitioner.

The learned senior advocate for respondent no.4 next submitted

that assuming for the sake of argument that, ‘taking out procession

is a right of the petitioner as a member of public’, but then such

right can always be subject to certain restrictions as is observed in

decision of C. Philip (supra). The learned senior advocate for

respondent no.4 submitted that in fact, the right of the petitioner of

taking out a religious procession is not jeopardized, because the

Municipality has taken care to see that a road of sufficient width is

available for taking out procession. Respondent no.4 has agreed

and provided a new road. Besides, Gadhadi gate is also maintained

as it is, looking to its historic value. Thus, right to take out

religious procession is in no way hampered. The learned senior

advocate for respondent no.4 submitted that there is a report to the

effect that in view of new road provided by respondent no.4, there

will be no inconvenience or hardship by way of congestion of traffic

at the time of taking out the religious procession.

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that if the matter is examined carefully, the right claimed by the

petitioner is a “private right” which must give way to the “right of

the public”. The learned senior advocate for respondent no.4

submitted that in fact the petitioner has made bald assertions only

in the matter of status of the road as “Prasadi road” and use of that

road since time immemorial. In fact, the petitioner, is not able to

establish from the literature published by petitioner itself about

Lord Swaminarayan and his activities while he was in Gadhda, that

the road in question is a “Prasadi road”. Similarly, the petitioner is

not able to place any convincing material on record to show that

the road in question was used for ‘return’ of ‘Jal Jilni’ procession.


is a settled position of law that whenever any right is claimed then

that claim is required to be supported by definite documentary

material to obtain a declaration from a competent court. In the

present case, there is no such definite documentary material to

obtain declaration in favour of the petitioner. In the case on hand

the claim of the petitioner stood examined initially by the

Municipality and then the Government, at subsequent stages, but

they did not find any substance in the claim of the petitioner. It

will be appropriate to mention that objections which were worth

taking care are taken care by the Municipality at the time of

passing resolution dated 30.05.2005. The learned senior advocate

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for respondent no.4 submitted that this submission is made without

prejudice to earlier submissions. The learned senior advocate

submitted that even if it is assumed for the sake of argument that

the petitioner had any right, such right has to give way to a public

right. In the present case, the Municipality on careful

consideration of all relevant facts, found it proper to allot the land

for ‘developmental activities’ of respondent no.4, which are

considered to be equivalent to “public purpose” and therefore, the

petition must fail and the claim made by the petitioner must be

negatived.

40. So far as Letters Patent Appeal No.608 of 2008 is concerned

the same is filed against the judgement and order of the learned

Single Judge of this Court rendered in Special Civil Application

No.6552 of 2007 dated 21st, 22nd and 24th April 2008. Learned

senior advocate Mr.Mihir Thakore appearing with learned advocate

Mr.B.M. Mangukiya submitted that taking into consideration the

events which have taken place it will be appropriate instead of

hearing Letters Patent Appeal No.608 of 2008, if Special Civil

Application No.6552 of 2007 is heard by this Court. At the request

of learned senior advocate Mr.Mihir Thakore and learned advocate

Mr.B.M. Mangukiya, Special Civil Application No.6552 of 2007 is

taken up for consideration and heard to which the learned

advocates appearing for respondents no.3 and 4 and the learned

Assistant Government Pleader appearing for the State have no

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objection.

41. Giving brief idea about Special Civil Application No.6552 of

2007 it may be stated that Special Civil Application No.6552 of

2007 was filed by Gopinathji Dev Mandir Trust through its

Chairman and also one, Harjibhai Nanjibhai Bhimani challenging

order dated 23.07.2007 passed by the Collector, Bhavnagar and

order dated 29.01.2007 passed by the Government of Gujarat.

Learned advocate Mr.Mangukiya for the appellants vehemently

submitted that,. ‘the petitioner-trust is cut on both the ends’.

Explaining his aforesaid statement that the petitioner-trust is cut

on both the ends, learned advocate for the appellants submitted

that when the petitioners challenged the resolutions passed by the

Municipality dated 12.07.2004 and 30.05.2005, the learned Single

Judge by judgment and order dated 02.09.2006 rejected the

petition on the ground that, ‘the matter will be considered by the

State Government at the time of according permission under

subsection (2) of section 65 of the Act’. Similarly, in Special Civil

Applications No.14517 of 2006 and 15460 of 2006, the petitioners

were told that the question about the ‘ownership of the land’

which the petitioners claimed to be that of the District Panchayat

will be considered by the Government at the time of considering

the question of granting permission under subsection (2) of section

65 of the Act. The Government did not consider these questions in

light of the contentions raised by the petitioners upto the

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satisfaction of the petitioners and therefore, the present petition,

viz. Special Civil Application No..6552 of 2007 was filed, is

dismissed by the learned Single Judge by judgment and order dated

21st, 22nd and 24th April 2008 on the ground that as the resolutions

passed by the Municipality (dated 12.07.2004 and 30.05.2005) are

held to be valid, ‘granting of sanction/ approval under section 65(2)

of the said Act is a mere formality and therefore, the petitioners

cannot be granted any relief’. Learned advocate for the

petitioners submitted that the net result of the aforesaid two

judgments and orders of this Court is that the petitioners are

rendered remediless. Therefore, now when the matter is large

open before this Court, the Court must consider the entire matter,

viz. legality and validity of the resolutions passed by the

Municipality and also the aspect of granting sanction/ permission

under subsection (2) of section 65 of the Act.

Learned advocate for the petitioner submitted that what is sought

to be done by the authorities is totally impermissible in law.

Explaining the same, learned advocate for the appellants- original

petitioners submitted that what is ‘missing’ in the resolution of

the Municipality is sought to be provided by way of explanation

incorporated in the order of the Collector and the State

Government, but then this is not permissible in law. The resolution

of the Municipality must stand of its own and it cannot get support

either from the order of the Collector or from the order of the

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Government.

Learned advocate for the appellants- original petitioners submitted

that what is important and noteworthy in this case is that the

material placed before this Court by respondent no.4 was never

placed before the Municipality when the Municipality passed

resolutions in question (Resolution No.94/ 17 dated 12.07.2004

and resolution no.137/ 21 dated 30.05.2005). Therefore, this

material cannot be looked into while deciding the legality and

validity of those resolutions.

In this regard, learned advocate for the petitioner read order

passed by the Collector dated 26.10.2005 in its entirety so also the

order passed by the Government dated 26.10.2005.

Inviting attention of the Court to para 7 of the order of the

Collector, learned advocate for the appellants- original petitioners

submitted that it is recorded by the Collector that, ‘the opponents

do support the case of the petitioners to the effect that public roads

are more than 200 years old’.

This submission of the learned advocate for the petitioners cannot

be accepted for a simple reason that the learned advocate for the

appellants wanted this Court to read those two lines without any

reference to context. Those lines can be read only in light of the

other submissions made on behalf of the opponents.

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Learned advocate for the appellants also invited attention of the

Court to para 15 of the order of the Collector. Learned advocate

for the appellants submitted that the contention raised by the

petitioners before the Collector are set out in the said para and

those contentions are not dealt with by the Collector in its order.

To illustrate he submitted that, ‘it was contended before the

Collector that it is impliedly mentioned that there are alternative

roads, but no details of those alternative roads are given’.

Similarly, ‘there is no decision taken about ‘non use’ of the roads

and that it is nowhere stated that the roads in question are totally

useless and unused’. The learned advocate for the appellants

submitted that thus, the contentions of the petitioner remained

unanswered by the Collector. Last, but not the least the learned

advocate for petitioner submitted that, ‘no documentary evidence

refuting the case of the petitioner about the roads was ever

produced before the Collector’, that being so, the Collector ought

to have decided the matter by holding the contentions and the case

of the petitioners as wholly true.

42. The learned advocate for the petitioners next invited

attention of the Court to para 17 of the order of the Collector

wherein the Collector has recorded other contentions raised by the

petitioners. One of the contentions mentioned in para 17 is that,

‘it is the case of the petitioners that the roads in question are

operative even as on date and the people of Gadhda town, saints of

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Swaminarayan Sampraday are using these roads and even if these

roads are not used, the same cannot be given to anybody as per

the provisions of law’.

43. Learned senior advocate Mr.Mihir Thakore assailed

Government order dated 27.06.2006, Collector’s order dated

26.10.2005, subsequent order of the Collector dated 20.02.2007,

and order passed by the Government dated 02.03.2007. Learned

senior advocate emphatically submitted that though section 146 of

the Act is read and re-read before this Court he will like to read

and invite attention of the Court to yet another facet of section 146

of the Act. The learned senior advocate submitted that the opening

part of section 146 of the Act does refer to the power of the

Municipality vis-a-vis public streets. There is a specific reference

of power of Municipality for discontinuance or stopping up any

public street. The learned senior advocate for the petitioners

submitted that but thereafter, the very same section refers to ‘the

said street’ as ‘land’. The relevant part of the Section reads as

under:-

“ .. .. and subject to the provision of

subsection (2) of section 65 to lease or sell any such

land, .. ..”

Learned senior advocate Mr.Mihir Thakore submitted that when

any street is lawfully discontinued or stopped up, it loses its

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character of being ‘street’. Once any street is lawfully

discontinued or stopped, it becomes a piece of land. It is only

after the ‘street’ assumes nomenclature of ‘land’, the Municipality

can lease or sell. Learned senior advocate in this regard invited

attention of the Court to subsection (2) of section 65 of the said

Act. Learned senior advocate submitted that in fact the Court must

come very heavy upon the Government for having not complied

with the directions given by this Court in its judgment and order

dated 02.09.2006 (in Special Civil Applications No.14517 of 2006

and 15460 of 2006). In this regard he invited attention of the Court

to the relevant part of the judgment, which reads as under:

“22. .. .. In absence of any sufficient

material, I find it proper to leave the matter at that

stage leaving it to the discretion and wisdom to be

exercised by the authority at the appropriate stage

and at an appropriate time. Suffice it to say that

while considering the matter for grant of permission

under Section 65 of he Act, the authority shall examine

the aspects of regulation of the traffic during the period

when Samaiya/ procession is to be carried or during the

period when ceremony of Jal Jilni is to be

performed once or twice in a year. If the existing

road is sufficient, it may not call for putting condition.

If the same is not sufficient, it would be for the

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authority to provide for such condition so that the

general public may not be put to any undue hardship

during the period when once or twice such procession

is to be undertaken every year.” (emphasis supplied)

44. Learned senior advocate submitted that the Government did

not carry out that direction and therefore, those two aforesaid

orders of 2006 passed by the Government are vitiated and are

required to be quashed and set aside and it is required to be held

that the Government has failed in its duty to take care of the

interest of public in granting permission under section 65(2) of the

Act. In this regard he invited attention of the Court to subsection

(2) of section 65 of the said Act, which reads as under:

“65. Powers of municipality to sell, lease, and

contract:

(1) xxx xxx

(2) In the case of every lease or sale of land under

subsection (1) of section 146 and of a lease of

immovable property for a term exceeding ten years and

of every sale or other transfer of such immovable

property, the market value of which exceeds one lakh of

rupees, the previous permission of the State

Government is required.”

45. Learned senior advocate submitted that in the first part of

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subsection (2) of section 65 of the Act, the word used is ‘land’,

whereas in the second part, the word used is ‘immovable property’.

Learned senior advocate submitted that the word ‘land’ is of

significance, because it is qualified by saying that, ‘the land under

subsection (1) of section 146, which is now identified as land’, this

it is given a special status than ‘other immovable property’ of the

Municipality. Learned senior advocate submitted that the

Legislature was conscious of the fact that in the matter of land

under section 146(1) of the Act, irrespective of the ‘tenure’ of lease

or irrespective of ‘the price’ for which it is to be sold, permission

under section 65(2) of the Act is to be obtained by the Municipality.

Learned senior advocate submitted that therefore, subsection (2) is

to be read in three parts as under:-

(i) Permission of the Government is required under the

subsection, whenever there is question of lease or sale of the

‘land’ which was street under section (1) of section 146 of

the said Act.

(ii) Whenever there is question of lease of ‘immovable

property’ for a term exceeding 10 years, then also permission

of the Government is required under this subsection.

and

(iii) Whenever market value of the immovable property

exceeds Rs.1 lac, permission of the Government is required.

46. Learned senior advocate submitted that in this view of the

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matter, a special duty is cast upon the Government while it

exercises power under section 65(2) of the Act. Learned Senior

advocate submitted that the very fact that the ‘land’ in question

(public street) is sold to respondent no.4, Government had duty to

consider whether it is warranted or it could have been avoided.

Learned Senior advocate submitted that reading the order of the

Government it does not transpire whether Government was alive to

all these aspects of the matter. Learned senior advocate submitted

that the order of the Government dated 29.01.2007 cannot be said

to be ‘a speaking order’, passed after application of mind to the

facts of the case. Learned senior advocate submitted that it

appears that the said defect is tried to be cured by order passed by

the Collector dated 20.03.2007 and order dated 02.03.2007.

Learned senior advocate submitted that the Government ought to

have decided, ‘the question of ownership of the land in question’ by

specific exercise which is absent and therefore, it can be said that

the Government did not apply its mind.

47. Learned senior advocate Mr.S.N. Shelat appearing for

respondent no.4 replying to the aforesaid contention submitted that

the submission made by learned senior advocate Mr.Thakore about

non compliance of the direction issued by the learned Single Judge

in order dated 02.09.2006 is without any merit. The learned senior

advocate Mr.Shelat submitted that the judgment and order dated

02.09.2006 was impugned in Letters Patent Appeal and that LPA

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was dismissed by the judgment and order dated 30.11.2007. In

absence of ‘direction being reiterated’ by the Division Bench, the

direction list its existence. In other wards, it ceased to exist.

Besides the matters were then carried in appeal before the Hon’ble

the Apex Court and the Hon’ble the Apex Court quashed and set

aside the judgment and order of the learned Single Judge as well as

of the Division Bench. Therefore, today, to submit before this Court

that the Government has not complied with the directions issued by

the learned Single Judge dated 02.09.2006 cannot be accepted.

Learned senior advocate Mr.S.N. Shelat appearing for respondent

no.4 submitted that the submission made by learned senior

advocate Mr.Thakore is required to be tested by posing a question

that if today, the petitioners file an application under the Contempt

of Courts Act, whether any action can be taken against the

concerned authority. Learned senior advocate Mr.S.N.Shelat

submitted that the answer is in negative because the judgment and

order of the learned Single Judge as well as that of the Division

Bench are quashed and set aside by the Hon’ble the Apex Court.

That being so, the submission of the learned senior advocate

Mr.Thakore be held to be without any merit.

Learned senior advocate Mr.Shelat appearing for respondent no.4

submitted that the matter is under consideration of this Court

afresh and as requested by learned advocate Mr.Mangukiya

appearing with learned senior advocate Mr.Thakore, Special Civil

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Application No.6552 of 2007 is also being considered afresh by this

Court.

The learned senior advocate submitted that even at the cost of

repetition he will reiterate that section 146 of the Act confers

‘absolute power’ on the Municipality. Question of permission

under section 65(2) of the Act arises only in the event when the

Municipality intends to deal with the property either by lease or

sale.

48. The learned senior advocate Mr.S.N.Shelat for respondent

No.4 vehemently submitted that the question of seeking permission

under subsection (2) of section 65 of the Act is a matter between

the Municipality and the Government and no third party can be

heard of complaining that the Municipality did not seek prior

permission or that the Government did not consider the aspects

which according to third party ought to have been considered

before granting permission.

49. Learned senior advocate Mr.Shelat submitted that besides

the aforesaid legal position even on factual matrix the submission

made by the learned advocate for the petitioners and learned

senior advocate Mr.Thakore cannot be accepted as the same are

devoid of any merit. In this regard learned senior advocate

Mr.Shelat invited attention of the Court to the affidavit in reply

filed on behalf of the respondent-State Government. The learned

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senior advocate submitted that in para 7 of the affidavit in reply

filed in Special Civil Application No.6552 of 2007 it is specifically

mentioned that,

“7. .. .. It is pertinent to note that majority of

the public properties abutting on the said roads belong

to respondent no.4. It is under these circumstances

that respondent no.3 municipality appears to have

received an application dated 7.8.2002 from

respondents no.4 to allot the land under the said roads

at the concessional rate as per prevalent policy and

rules of the State Government for developing the lands

of the Gadhda Municipality, without causing

obstruction to any one. It appears that the said

application was thereafter, followed up by reminders,

which ultimately led to the passing of resolution in the

general body of Municipality on 12.7.2004. As per the

said resolution, objections came to be invited from all

the concerned by giving an advertisement in the local

newspaper by declaring inter alia that the land of roads

nos.1, 2 and 3 of town Gadhda are proposed to be given

to respondent no.4 by way of sale for the purpose of

various developmental works. It further appears that

after considering objections, the respondent no.3

municipality passed the final resolution no.137 (21) on

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30.5.2005 which was the subject matter of challenge

initially before the Collector under section 258 of the

Act and thereafter, by way of revision under section

264 of the Act, which came to be disposed of in favour

of the municipality by an order dated 27.6.2006, which

further came to be challenged by way of writ petition

being Special Civil Application No.14517 of 2006 as

well as Special Civil Application No.15460 of 2006.

Both the said writ petitions were disposed of by this

Hon’ble Court (Coram: Hon’ble Mr.Justice Jayant Patel)

vide judgment and order dated 2.9.2006. I respectfully

say that against the said judgment dated 2.9.2006, the

petitioners preferred Letters Patent Appeal No.122 of

2007 and 123 of 2207 and the same is pending.”

50. Learned senior advocate invited attention of the Court to

Annexure ‘I’ to the said affidavit in reply filed by the State

Government in Special Civil Application No.6552 of 2007, which is

letter dated 29.11.2006 from the Office of the Collector, Bhavnagar

addressed to Section Officer, Urban Development and Urban

Housing Department, which contains informations on as many as

31-thirty one points pertaining to procedure required to be

followed in such matters. Following entries are relevant and

important for our purpose.

Item No.3 of List 31 is as under:

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(i) “Ownership of the land in question is

that of Gadhda Nagarpalika.

It mentions various other aspects. It gives

information on various aspects which have direct

bearing on the question of granting permission to

lease or sell such land.

(ii) Item 15 mentions that the land in question

is the land of road in a residential zone.

(iii) Item 16 of the land in question is not to be

leased, but is proposed to be given on permanent

basis by sale.

(iv) Item No.18 : The land in question is not to

be given on token price , but is to be given at the

prevailing market price on permanent basis by

sale. Economic condition of Gadhda Nagarpalika

is not good and if land is given by sale, permanent

income of Nagarpalika is likely to increase and

therefore, the question of giving land by sale is

required to be considered.

(v) Item No.19 : As the land in question is

pertaining to road, Gadhda Municipality has

passed resolution dated 23.07.2004 and as per

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section 146 of the Municipalities Act, 1963,

necessary public notice is issued and objections

are received pertaining to the said public notice

and copies of the objections and notice are

enclosed herewith.

(vi) Item No.22: The land in question is adjacent

to land of person demanding the same.

(vii) Item No.30 : Gadhda Nagarpalika has not

obtained any loan under any Government scheme

and has not constructed any property on this

land. Therefore, no land is required to be repaid

by consideration which may be received by selling

this land.

(viii) Item No.31 : Whatever income is received

by sale of land by Gadhda Nagarpalika, Gadhda

Nagarpalika is to spend that amount for

developmental activities.”

(emphasis supplied)

It is after considering all these details that the Government decided

to grant prior permission.

51. Learned senior advocate Mr.Shelat submitted that from the

communication dated 17.01.2007 from the Office of the Collector,

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Bhavnagar addressed to Section Officer, Urban Development and

Urban Housing Department (Page 288 of compilation of Special

Civil Application No.6552 of 2007), it is clear that every single

aspect, incorporated in the objections was taken care of by the

authorities. Opening of that letter reads as under:

“With regard to the aforesaid subject, the land

belonging to Gadhda Nagarpalika is to be sold to Shri

Akshar Purushottam Swaminarayan Mandir, Gadhda.

In the said matter, as per the observations made by the

Hon’ble High Court of Gujarat in its judgement and

order dated 03.09.2006 (sic.), para 22 of judgment,

Deputy Collector, Palitana, Divisional Police Officer,

Botad were asked to inquire into the matter. As a result

thereof following information is received:

1. At present on the Road No.1 there are fairs,

auspicious occasions and etc. events there are

processions taken and this road is used for taking the

procession to the Ghelo river bank. If this road is sold

permanently to Shri Akshar Purshottam Swami

Narayan Mandir then due to the road closing as an

alternative to the Road No. 1 at present besides the

vegetable market gate there is one road. Over and

above this road besides the gate there is additional 3-35

mts. road which will be put up by Shri Akshar

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Purshottam Swami Narayan Temple. Thus, if the Road

No. 1 closes then alternatively the public will get two

roads for commuting. And, if the Road No. 1 closes then

the nearby road is absolutely close to the gate. And the

said road directly leads to the Ghelo river bank.

Therefore, if the Road No. 1 is closed then there will

not be any hindrance to the movement of traffic or the

public. And, during the celebrations of the fair and

auspicious occasions also there is no likelihood of any

traffic obstruction.

2. In the same manner in the event of the Jalini Utsav

from the Road No. 2 the Palkhi is taken to the houses of

the devotees. But, on this road the majority of the

houses of the devotees are purchased by Shri Akshar

Purshottam Swami Narayan Mandir. On both the sides

of the Road No. 2 the buildings are of the ownership of

the applicant Sanstha. And, majority of the residents

have moved to live at other places, thus, in the event of

the Jaljilni Utsav the question of taking the palkhi

procession on the Road No. 2 does arise. In spite of this

for going to the houses on the road No. 2 there are

other roads in the City open. Thus, the buildings on the

Road No. 2 are purchased by the applicant Sanstha,

therefore there is no likelihood of any obstruction or

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interference to the traffic.

3. The Divisional Police Officer, Botad has in his report

dated 15/1/2007 stated that as alternative to the Road

No. 1 the visiting public will be more convenient on the

Road of 4-35 meters to be put up in place of the 3-35

meters road.”

52. Learned senior advocate Mr.Shelat then invited attention of

the Court to order passed by the Collector on 02.03.2007, a copy of

which is produced at Annexure ‘E’ to Special Civil Application

No.6552 of 2007. In the said order, after setting out history

aspect, the Collector made a reference to SCA Nos.12600 of 2005,

23329 of 2005, 23331 of 2005, 23332 of 2005, 13517 of 2006, and

15460 of 2006 (sic., Special Civil Application No.14517 of 2006).

The Collector has also recorded that all these petitions are

dismissed by the High Court and that on closure of these roads

there will be no obstacle to egress and ingress of public as

alternative roads are available.

The learned senior advocate invited attention of the Court to the

next para of the order of the Collector, wherein the Collector has

considered in detail the contention regarding traffic problem which

may arise on account of closure of Roads No.1 and 2 on the

occasion of ‘Jal Jilni Ekadashi’ and ‘Samaiya’ (gathering on

religious occasion). The Collector has also recorded that the

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learned Single Judge had given direction to inquire into the matter

through competent authority and in this regard (i) Sub-Divisional

Magistrate, Palitana, (ii) Divisional Police Officer, Botad, (iii) Chief

Officer, Gadhda Municipality and (iv) Mamlatdar, Gadhda were

asked to submit their reports. The said reports were received and

on study of those reports, the Collector has recorded that in lieu of

Road No.1, adjacent to Prasadi Gate (Gadhadi Gate), an additional

road having width of 4.35 meters is going to be provided by Shri

Akshar Purshottam Swaminarayan Mandir Sanstha and thus, there

will be two roads available for public for ingress and egress.

Closure of Road No.1 will not create any traffic problem. Similarly,

so far as Road No.2 is concerned, majority of the properties are

belonging to Shri Akshar Purshottam Swaminarayan Mandir

Sanstha, there is no question of taking ‘palanquin’ (Palkhi) on that

road. Besides, it has come on record that there being alternative

roads available there will be no hurdle or obstacle in traffic. It is

also mentioned by the Collector that all these details were

submitted to the Government of Gujarat at the time of seeking

permission under section 65(2) of the Act and the same are taken

into consideration by the Government. Not only that the

alternative road for Road No.1, was earlier provided to be of 3.35

meters was later increased to 4.35 meters and Shri Akshar

Purshottam Swaminarayan Mandir Sanstha has to provide the

same from the land in its possession. On providing of such

road there will be no traffic problem. The Collector thereafter has

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taken note of the activities of respondent no.4-institution and after

taking into consideration all the facts, has stated that now only a

formal order is required to be passed under the said Act.

Accordingly, order is passed by the Collector. (emphasis supplied).

53. Learned senior advocate Mr.Shelat appearing for respondent

no.4 submitted that the submissions made by the learned advocate

for the petitioners with regard to circular bearing No.NPL/ 455/

4049 issued by the Urban Development and Urban Housing

Department dated 09.04.1988/ 19.05.1988, another circular

bearing no.NPL/ 1489/ 843/ M dated 25.10.1990 of the same

Department and circular No.NPL/ 4598/ 5935/ M dated 12.01.1999

and enclosure to circular dated 12.01.1999 are not mandatory in

nature so as to render non compliance of the instructions contained

therein the act of the Municipality to be illegal. The learned senior

advocate submitted that at the most, these circulars can be said to

be laying down guidelines to be followed by the Municipality in the

matters of leasing out or selling the land under section 146(1) of

the Act. They also provided guidelines to be followed in the

matters of according prior sanction under section 65(2) of the Act.

The learned senior advocate submitted that it is mentioned in the

circular dated 19.05.1988 that by notification bearing NO.KP/ 235/

71/ MVN-1470 – 24716 – 71 GH dated 25.12.1971, power is

conferred on the Collectors to grant permission under sections

65(2) and 146(1) of the Act. It is with a view to provide the

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Collectors ‘principles’ to be kept in mind at the time of granting or

not granting such permission, administrative instructions are given

by letter dated 01.01.1972 bearing No.MVN/ 1470/ 9017/ 71/ GH

and by circular dated 15.04.1987 bearing No.NPL/ 4586/M.

The learned senior advocate submitted that the very fact that it is

specifically mentioned therein that these circulars provided

guidelines only and they are in the nature of administrative

instructions/ guidelines. They do not in any manner supersede the

provisions of law. These circulars should be followed by the

officers of the State. The learned senior advocate submitted that in

fact Circular dated 19.05.1988 mentions in the opening part that

despite the aforesaid administrative instructions dated 01.01.1972

and 15.04.1987, it has come to the notice of the Government that

proposals were not properly considered and therefore, the

instructions contained in that circular dated 19.05.1988 were

required to be issued and accordingly the Government issued

guidelines/ instructions set out in the circular dated 19.05.1988.

54. The learned senior advocate submitted that the learned

advocate for the petitioners has given undue weightage to

guideline no.3 contained in circular dated 19.05.1988 which says

that, ‘in the event any objection is filed at the time of final disposal

of such petition, the objector should be conveyed in writing the

reason for which his objection is not accepted and receipt is to be

obtained’.

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The learned senior advocate appearing for respondent no.4

submitted that as submitted hereinabove the instructions contained

in these circulars are administrative in nature and the circulars as

whole are in the nature of guidelines and therefore, non

compliance of any particular guidelines/ administrative instructions

cannot render action of the Municipality vitiated on that ground.

The learned senior advocate submitted that on perusal of the

circulars it is noticed that the same are provided without making a

distinction between ‘lease’ or ‘sale’ of the land under section 146 of

the Act and other immovable properties of the Municipality.


submitted that similarly the learned advocate for the petitioner is

giving undue weightage to guideline/ instruction No.10, wherein it

is stated that, ‘the Municipality shall specifically examine that such

properties are required by Municipality for any other purpose’.


submitted that it cannot be lost sight of the fact that in the present

case, ‘use’ to which the land is going to be put by respondent no.4

is akin to ‘public purpose’ and therefore, even otherwise, it cannot

be said that there is non compliance of any of the instructions/

guidelines laid down by the said circular. The learned senior

advocate appearing for respondent no.4 submitted that in the last

para of circular dated 19.05.1988, it is mentioned that though full

power is given to the Collector for disposal of surplus land under

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section 146(1) of the Act, the provisions of section 65(2) of the said

Act will be applicable in case the market price exceeds Rs.1 lac or

lease period is exceeding 10 years and where the land is to be

given on concessional rate, prior permission of the Government will

be necessary.

55. The learned senior advocate submitted that Circular dated

25.10.1990, in the opening part, mentions that section 80(1) of the

said Act provides that the movable and immovable properties

within the limits of municipality can be acquired by the

Municipality and can hold the same. It is also mentioned in the

said circular that the properties which have vested in the

Municipality under section 65(1) of the said Act or if the properties

acquired by the municipality (movable and immovable), the

municipality subject to restriction of section 65(2) of the said Act

can lease out or sell the same and the municipality is conferred

with that power. But at the same time as per the requirement

of sec.65(2) of the said Act, municipality will have to take

prior permission of the Government wherever it is required.


The learned senior advocate submitted that circular specifically

provides that wherever there is change of use, the municipality

cannot give the same without prior permission of the Government.

As an illustration it is mentioned that if it is a pond land or road

land, the land stands vested in the municipality for a particular

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purpose and if by sale of such land the purpose stands changed and

the same cannot be done without prior permission of the

Government.

The learned senior advocate submitted that circular is in advisory

format and gives an instruction to all the municipalities to see that

the provisions of law contained in sections 65(1), 65(2), 146(1) and

146(2) of the Act are acted upon and the municipality shall not

exceed its jurisdiction/ power for selling the land or leasing out the

land. Last, but not the least, in closing para, the circular states that

in the event the municipality is found to be arbitrarily or by wrong

interpretation of law resorts to transfer of property it will be

considered to be a ‘mala fide act’ and necessary legal action will be

taken against the municipality for the same.

56. The learned senior advocate submitted that coming to

circular dated 12.01.1999, in para 1, it is mentioned that by letters/

circulars mentioned in reference nos.1 to 5, necessary guidance is

provided. Despite that proposals are submitted to the Government

with incomplete details and therefore, for submitting details

hereafter, as guidance, check list is prepared which is annexed to

this circular. In para 2, it is stated that the said check list includes

all the points/ factors which are required to be taken into

consideration and proposals for sanction of the Government should

be submitted only with compliance of check list points (factors) and

the Collector shall take care for the same. The learned senior

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advocate submitted that it is in compliance of the said check list as

mentioned earlier, proposal of the Municipality was taken into

consideration. Taking into consideration the said check list,

Collector, Bhavnagar has submitted details to the Section Officer,

Urban Development and Urban Housing Department dated

29.11.2006, which is referred to hereinabove in detail, more

particularly with check points no.3, 15, 18, 19, 20, 21 and 22.


that even at the cost of repetition he will like to reiterate that there

is specific finding placed on record before the Collector that,

‘ownership of the land is that of the Municipality’, similarly there is

a specific finding placed on record before the Government, ‘about

approach road available to property no.3281’. Similarly, ‘about

inconvenience’, the State Government has relied upon a report

made by the Police Department and taking into consideration the

said report, width of the road to be provided was increased from

3.35 to 4.35 meters’. Last, but not the least, the learned senior

advocate submitted that taking into consideration the peculiar facts

of the case, action was not warranted in the present case, because

taking into consideration the geographical situation of the land in

question it was not possible for anybody else to put the land to a

better use and therefore, the municipality has rightly decided to

give this land to respondent no.4. (emphasis supplied).

The learned senior advocate submitted that learned advocate

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Mr.Mangukiya has given up the point about, ‘the land being given

without resorting to public auction’. The learned senior advocate

submitted that though there are various other judgments which go

to say that, ‘public auction is not the only mode of dealing with

public property’, he will like to refer and rely upon a decision of the

Hon’ble the Apex Court in the matter of Sachidanand Pandey

and another Vs. State of West Bengal and others, reported in

(1987) 2 SCC 295, wherein the Hon’ble the Apex Court had

observed as under:

“39. .. .. In Chenchu Rami Reddy v.

Government of A.P.,10 it was observed that public

officials entrusted with the care of ’public property’

were required to show exemplary vigilance. The Court

indicated that the best method of disposal of such

property was by public auction and not by private

negotiation. That was a case where land belonging to a

Math was sold by private treaty for Rs. 20 lakhs when

there were people ready to purchase the land for Rs. 80

lakhs. The difference between sale of land and other

readily salable commodities and the allotment of land

for establishing a modern Five Star Hotel of

international standard is so obvious as to need no more

explanation.

40. On a consideration of the relevant cases cited at

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the bar the following propositions may be taken as well

established. State-owned or public-owned property is

not to be dealt with at the absolute discretion of the

executive. Certain precepts and principles have to be

observed. Public interest is the paramount

consideration. One of the methods of securing the

public interest, when it is considered necessary to

dispose of a property, is to sell the property by public

auction or by inviting tenders. Though that is the

ordinary rule, it is not an invariable rule. There may be

situations where there are compelling reasons

necessitating departure from the rule but then the

reasons for the departure must be rational and should

not be suggestive of discrimination. Appearance of

public justice is as important as doing justice. Nothing

should be done which gives an appearance of bias,

jobbery or nepotism.”

The learned senior advocate submitted that the aforesaid position

is reiterated by the Hon’ble the Apex Court in a recent judgment in

Special Reference No.1 of 2012 [Under Article 143(1) of the

Constitution of India] [Regarding 2G Spectrum), reported in JT

2012 (9) SC 457, wherein the Constitutional Bench of the Hon’ble

the Apex Court has observed as under:

“Similar deviation from auction cannot be ruled out

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when the object of a State policy is to promote domestic

development of an industry, like in Kasturi Lal’s case,

discussed above. However, these examples are purely

illustrative in order to demonstrate that auction cannot

be the sole criteria for alienation of all natural

resources.”

The learned senior advocate submitted that in the present case

also as is stated hereinabove and brought out by reference to the

application made by respondent no.4, carefully incorporated in

resolution no.94/ 17 dated 12.07.2004 and resolution no.137(21)

dated 30.05.2005. The learned senior advocate submitted that it is

in light of these latest judgement, the learned advocate for the

petitioners decided not to press this point.

58. While concluding his submission the learned senior advocate

for respondent no.4 submitted that a very similar situation had

arisen before the Calcutta High Court in the matter of Nuddea

Mills Co. Ltd Vs. Sidheswar Chatterjee and others, reported in

A.I.R. 1929 Calcutta 33. The learned senior advocate submitted

that facts are set out in the opening para, which are reproduced

hereinbelow for ready perusal:

“This appeal arises out of a suit brought by the plaintiff-

respondent against the appellant company and the

Naihati Municipality for a declaration of the plaintiff's

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right of way over a certain public road called

Radhaballav Road and for other consequential reliefs.

The plaintiff's case is that long ago a temple was built

and dedicated by one of his ancestors on Radhaballav

Road, a little away from another public road called

Ferry Fund Road connected by Radhaballav Road. The

plaintiff further claimed easement of necessity over the

road. He sought for a further declaration that the act of

the Municipality in closing up the road was ultra vires

and also for a permanent injunction restraining the

defendants from interfering with his right of way over

the road to reach the temple and for a direction on the

appellants to remove obstructions put by them across

the road. The facts are that there was a road called

Radhaballav Road leading from Ferry Fund Road

westward to the Hooghly; there were houses on both

sides of the road all of which except the temple were

acquired by the appellant company and they have

erected at great cost a jute mill which they are

working. The defendant Municipality sold the whole of

Radhabullav Road to the appellant company who have

included it in their mill compound by a boundary wall.

The road from the Hooghly to the temple has been

closed and there is no objection to this because the

appellants have acquired all the lands on both sides of

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the road. The dispute is with regard to the portion of

Radhaballav Road from the temple to Ferry Fund Road.

The Municipality finding it probably not worth while to

maintain this portion of the road sold the entire road to

the mills. In order to allow the plaintiff to reach the

temple a passage was given to the plaintiff by the

appellants of which we will speak later.

The defence of the appellants and of the Municipality is

that in the exercise of the power vested in the

Municipality under the law it has transferred this road

to the appellants that the plaintiff has not absolute

right of passage over it and that the passage given by

the appellants to the plaintiff is sufficient for the

purpose. The trial Court found for the plaintiff on all

the points on which he based his title to the road, and

held that the Municipality has no right to sell the land

to the mill; and further that the plaintiff had an

easement of necessity over the road. The lower

appellant Court confirmed all these findings but in view

of the decision of the Allahabad High Court in Fazal

Haq v. Maha Chand(1) thought that the plaintiff should

be given a passage in lieu of the road and the passage

proposed by the appellants from Ferry Fund Road to

the temple almost diagonally across the appellant's

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lands would suit but that it should be walled up on both

sides by the appellant without the gate put up by them

at he head of the passage. In this view the learned

Additional District Judge passed a decree to the effect

that he appellant company should remove their gate

from the passage keeping an intermediate space of at

least six feet in width and should wall it up on both

sides. If they failed to do so in a fortnight the plaintiff

would be at liberty to execute the decree and to have

the old Radhaballav Road reopened on demolishing the

company's boundary wall and to have access to the

temple by that road. This order to a certain extent,

makes our position easy and leaves us to consider what

should be the proper order passed in the circumstances

of the present case. But as the lower appellate Court

has confirmed that view of the first Court on the

questions of law raised which have been pressed before

us by the learned advocate for the respondents it is

necessary to examine them in brief.

The Court then considered the case and observed as under:

“This brings us to the next question as to whether the

land, assuming it to include road, was disposed of as it

was no longer required “for the purpose of this Act.” If

it was, then the Civil Court has no right to challenge or

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investigate into the propriety of the Commissioner's

action. If it was not, then, however reasonable the act

of the Commissioners might appear, the Court would

declare such act illegal and ultra vires. Now “the

purpose of the Act” is not defined in the Act itself but

some indication as to what the purposes of the Act are

may be gathered by a reference to S.69 of the Act

which details some of the objects to which the

Municipal fund may be devoted. After indicating some

of the heads on which the Municipal funds may be

expended, CI.(17) of the section, says “generally, to

carry out the purposes of the Act.” This does not bring

us very much nearer to what “the purposes of the Act”

means. In CI.(3), S. 69 it is again said that the

Commissioners may do all things, not being

inconsistent with this Act, which may be necessary to

carry out the purposes of this section. The purposes of

the Act must be the purposes for which the

Municipalities in the mufussil are created. The

preamble to Act 3 of 1864 which may be taken to be the

earliest Act relating to mufussil Municipalities runs in

these words:

“An Act to provide for the appointment of

Municipal Commissioners in towns and other

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places in the Provinces under the control of the

Lieutenant Governor of Bengal and to make

better provision for the Conservancy,

Improvement and Watching thereof, and for the

levying of rates and taxes therein.”

The objects therein mentioned may be taken to be

the purposes for which the Municipalities came into

existence. The power of the Commissioners to transfer

lands including roads &c., must, therefore be exercised

for the improvement &c. of the Municipality. Now, in

the present case we find that Radhaballav Road as a

road had become useless to the general public. The

greater portion of it had been closed and was of no use,

only a small portion still remained from the temple to

Ferry Fund Road. It can only be used by the plaintiff

and votaries of the temple. In these circumstances we

cannot say that the Municipal Commissioners were

acting beyond the power vested in them by the law in

regarding this portion of the road as no longer required

for the purposes of the Act and selling it to the

appellant. They did not certainly do something

prohibited by law or inconsistent with the Act.

It has again been argued that no Municipality has

the power to close or divert a road. If we are right in

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our view that the Municipality has the power to sell or

dispose of a road under the law as it stands, it cannot

be argued that it has not also the power to close or

divert a road “for the purpose of the Act.” In fact it was

conceded that it had such power in the Allahabad case

on which the Court below has relied. There is an old

case of this Court to which reference may be made in

this connexion. In Empress v. Brojonath De (3) it was

held that the Municipal Commissioners had no power

under the law to stop or divert public ways. That

decision was passed before the amending Act of 1894

and therefore is not of much help to us. If it is of any

authority at the present day it has to be reconsidered.

The English Law relating to highways is not of much

assistance to us in construing a Bengal Act. Under that

law the soil beneath the road belongs to the owner of

the land or to the owners of the lands on the two sides

of the road. There is no enactment there which vests

the subsoil of the highways in a local authority. But

although under that law the local authority has not

been expressly empowered to stop or divert a road it

can do so by observing certain formalities mentioned in

the Highways Act of 1835.

In Brojo Nath Das's case a reference was made to

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the Calcutta Municipal Act. It was pointed out there

that such power is vested in the Commissioners of the

Calcutta Corporation, but as it was not expressly given

by the Bengal Municipal Act to the Commissioners of

the mufussil Municipalities, it must be held to have

been denied them. The same reasoning has been

adopted in this case but it seems to us that though it

may be permissible to construe an Act with reference to

another Act when they are pari materia, the absence of

an express provision in one does not necessarily import

intentional omission in the other without clear words to

that effect. The Act, as it stands, must be construed

with in its four corners. There is nothing in the Act

which prohibits the Commissioners to stop or divert a

road or to dispose of a road. The only limitation to their

power given by the Act is that they must exercise such

power only for the purposes of the Act. We cannot say

that the sale of the road by the Municipality to the

appellant was not in the proper exercise of the power

vested in it by law. It was for the purposes of the Act,

namely, the improvement of the Municipality and what

the Commissioners thought advantageous to it.”

The learned senior advocate submitted that the present case is on a

better footing. The learned senior advocate submitted that it is not

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in dispute that the Municipality has power to do certain things

which include even discontinuance or stopping up a street. The

learned senior advocate submitted that it is also not in dispute that

the municipality has power to lease or sell that land (subject to

section 146(1) of the Act), but for that the only condition prescribed

is that such action should be taken by following the procedure

prescribed for taking permission under section 65(2) of the Act. In

view of that once it is clear that from the resolution of the

Municipality, the Municipality deemed proper to sell this land to

respondent no.4, taking into consideration the purpose for which

respondent no.4 is going to put the land in question to use, action

of the municipality cannot be found fault with.

The learned senior advocate for respondent no.4 also placed

reliance on a yet another decision of the Calcutta High Court in the

matter of Joykrishna Pramanick & others Vs. Kamarhati

Municipality & others, reported in Calcutta Weekly Notes 1994

CWN 870. He invited attention of the Court to para 13, which reads

as under:

“13. A Municipality is the owner of public streets but

such ownership cannot be equated to the ownership of

a private individual in respect of his own property. The

Municipality is a creature of Statute and it has to

discharge certain statutory functions. It cannot deal

with its properties as it thinks best in any manner

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destructive of the purposes of the Bengal Municipal

Act, 1932. In a public street, the public have a right of

way, a right of user as pedestrian or otherwise which

they are entitled to exercise without obstruction. If a

public thorough fare is blocked or closed, for which a

person living in the locality and using the road or street

frequently cannot pass through the same because of

such closure, blockade or obstruction, he can certainly

move the constitutional Writ Jurisdiction of the High

Court for directing the concerned authorities to

perform their statutory duties by removing such closure

or blockade or obstruction, as the case may, on the

public road or street. At the same time if it appears that

the Municipal authority has closed a portion of a public

road or street, may be permanently, considering the

same as no longer required for the purposes of the

Bengal Municipal Act, 1932 and transfer such closed

portion to a third party may be for the transferee's

commercial purpose, after securing alternative and

adequate public pathway and without affecting the

public interest in any way, such act of the Municipality

cannot be termed as illegal being opposed to public

policy.” (emphasis supplied)


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the case on hand the facts are much appropriate to apply. The

principles laid down by the Calcutta High Court in the aforesaid

decision are squarely applicable to the facts of the present case.


the present case it is on record that the properties situated on road

no.2 are mainly owned by respondent no.4. So far as road no.1 is

concerned, alternative road is provided from its own land and

activities carried on by respondent no.4 are akin to the activities

which municipalities are required to carry on to discharge its

duties as ‘institutions of self government’, more particularly, which

are listed in entry no.13 to Twelfth Schedule under Article 243W of

the Constitution of India. The learned senior advocate for

respondent no.4 submitted that taking into consideration all these

factors, action of the municipality cannot be found fault with and

the same is required to be approved by this Court and the petition

is required to be dismissed.

59. After taking into consideration the rival submissions made by

the learned advocates about power of Municipality under section

146 of the Act, this Court is of the opinion that,

(i) So far as section 146 of the Act is concerned it does

confer power on the municipality to do certain acts which are

enlisted in the section itself.

(ii) The actions which are lawful for municipality include

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discontinuing a street or stopping up a street.

(iii) Power conferred on municipality is qua ‘any’ public

street and word ‘any’ cannot be substituted by words

’unused/ redundant street’. It is not in dispute that

municipality does have a power to deal with the land, by

leasing out or selling the same, but before leasing or selling

out the land, the municipality has to be alive to the fact that

the land in question is not required for public street or for

any other purposes of this Act.

(iv) At the time of dealing with that land it is necessary for

the municipality to follow the procedure prescribed under the

proviso and in addition to that the municipality has to take

prior permission of the Government in certain circumstances.

(v) The Court is of the opinion that action permissible

under section 146 of the Act for municipality is required to be

taken step by step, but that requirement is not mandatory to

the extent of rigidity. In the event of some change in

sequence like in the present case, it does not render the

action /decision of the Municipality unlawful and violative of

section 146 of the said Act.

(vi) Section 65(2) of the Act can be read in three parts as

suggested, viz. (a) prior permission of the Government is

required in case of every lease or sale when it pertains to

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land under section 146(1) of the Act. Similarly, (b) prior

permission of the Government is required when municipality

is leasing out an immovable property for a term exceeding 10

years, (c) likewise prior permission of the Government is

required to be taken when municipality is to sell out

immovable property and its market value is more that Rs.1

lac.

60. Coming to the submissions made by the contesting parties

about resolution no.94/ 17 dated 12.07.2004, the Court is of the

opinion that the municipality has not violated any provision of law

much less section 146(1) of the Act. This Court is of the considered

opinion that the municipality acted with all bona fides and that is

clear from the fact that the municipality did not make any secret

about the application received by it from the General Secretary of

Bochasanvasi Shri Akshar Purshottam Sanstha (respondent no.4

herein). It did take into consideration the activities carried on by

respondent no.4-institution and set out them in the resolution itself.

There is no doubt that these activities are in the nature of ‘public

purpose’ and in any case, these activities serve a ‘public

purpose’. The Court cannot be unmindful of the fact that the

Government, by adopting Public Private Partnership (PPP) Model,

is trying to achieve these ‘public purposes’. Looking to the facts on

record, respondent no.4 cannot be equated with ‘an individual’

having object of earning profit at its heart. The campaign of

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illiteracy abolition or campaign of undertaking education for people

and enlightenment of people and other similar activities which are

carried on by respondent no.4 do serve public purpose. At this

juncture, it is required to be mentioned specifically that, ‘the

municipality is given a special status after amendment to the

Constitution and under clause (e) of Article 243P of the

Constitution, municipality is defined as an institution of self-

government , which will have powers and authority as enumerated

under Article 243W and municipalities are authorized to exercise

those powers subject to such conditions as may be specified with

respect to “purpose, function and implementation of schemes as

may be entrusted to them including in relation listed in Twelfth

Schedule”. The matters enlisted in Twelfth Schedule do include

activities which are carried on by respondent no.4, more

particularly, with reference to entry 13, which pertains to

“Promotion of cultural, educational and aesthetic aspects”.


Coming to the case of the petitioners, the petitioners are not able

to establish with the help of any material that the road in question

is a ‘Prasadi’ road and that during his lifetime, Lord

Swaminarayan used this road as a ‘return route from river Ghelo’.

61. Much hue and cry is made about ‘Jal Jilni’ procession. It is on

record, incidentally in the form of printed material published by the

petitioner-institution itself, that ‘Jal Jilni’ procession was taken out

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only five times during lifetime of Lord Swaminarayan. Every time

‘Jal Jilni’ procession was taken out to ‘different places’. It can be

understood that when places are different, the road leading to

those places will also be different. In these facts, wheat remains

important is ‘Jal Jilni’ procession and not ‘the route’.

62. Coming to the aspects of ‘property on both the sides of road

no.2, it is submitted by the learned senior advocate for respondent

no.4 that majority of the properties are owned by respondent no.4-

trust.

63. So far as road no.3 is concerned, learned advocate

Mr.Mangukiya for the petitioners submitted that there is no much

dispute about road no.3 and he has to concentrate on roads no.1

and 2 only. So far as road no.2 is concerned, one of the arguments

made is that while on its return journey of ‘Jal Jilni’ procession,

there used to be ‘Padhramani of Lalji Maharaj’ at the house of

residents on road no.2. But then, now the properties on road no.2

are purchased by respondent no.4 that question does not survive.

64. It is on record that after careful inquiry the concerned

authorities like Chief Officer of Gadhda Municipality, Mamlatdar of

Gadhda have stated that in the event any alternative road is

provided nearby Gadhadi gate of prescribed width (which was

initially 3.35 meters is increased to 4.35 meters), the question of

congestion of traffic is taken care. Thus, the action of the

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Municipality cannot be brought under challenge on the ground that

Municipality was not mindful about availability of alternative route

and congestion of traffic on alternative road. So far as property

no.3281/1, it is on record that there is alternative road available to

reach to the property. Therefore, insistence on the part of the

petitioners to use only roads no.1 and 2 is not tenable in law.

65. The contention raised by the learned advocate for the

petitioner about the emotional attachment of saints and devotees to

the reads in question is also not found acceptable in light of the

fact that it is the settled position of law that right of a citizen with

respect to a road is only that of ‘ingress and egress’ and in the

event ‘the institution of local self government’ comes to the

conclusion that the road can be put to a better use serving public

purpose and if alternative road is available, the private right of

members of public must give way to ‘public right’.

66. So far as Resolution No.137(21) dated 30.05.2005 is

concerned, it is on record that the Municipality did take care of all

the objections and that is evident from the “conditions” prescribed

in the resolution /order granting land to respondent no.4.

67. This Court is of the opinion that in the matter of ‘considering

the objections’, the observations of the Hon’ble the Apex Court in

the matter of Sachidanand Pandey (supra), in paras 27 and 28

are applicable to the facts of the case. The said paras read as

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under:

“27. Dr. Singhvi cited before us the well known

decisions of this Court in Rohtas Industries Ltd. v. S.D.

Agarwal2, Barium Chemicals v. A.J. Rana3 and

Mohinder Singh Gill v. Chief Election Commissioner, to

urge that even an administrative decision must be

arrived at after taking into account all relevant

considerations and eschewing irrelevant

considerations and that the reasons for an order

must find a place in the order itself and those

reasons cannot be supplemented later by fresh reasons

in the shape of an affidavit or otherwise. The

submission was that neither the Cabinet Memorandum

of January 7, 1981 nor the Cabinet Memorandum of

September 9, 1981 revealed that relevant

considerations had been taken into account. What was

not said in either of the Cabinet Memoranda, it was

said, could not later be supplemented by considerations

which were never present to the mind of the decision

making authority. We do not agree with the submission

of Dr. Singhvi. The proposition that a decision must be

arrived at after taking into account all relevant

considerations. eschewing all irrelevant considerations

cannot for a moment be doubted. We have already

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pointed out that relevant considerations were not

ignored and, indeed, were taken into account by the

Government of West Bengal. It is not one of those cases

where the evidence is first gathered and a decision is

later arrived at one fine morning and the decision is

incorporated in a reasoned order. This is a case where

discussions have necessarily to stretch over a long

period of time. Several factors have to be independently

and separately weighed and considered. This is a case

where the decision and the reasons for the decisions

can only be gathered by looking at the entire course of

events and circumstances stretching over the period

from the initiation of the proposal to the taking of the

final decision. It is important to note that unlike

Mohinder Singh Gill’s case where that Court was

dealing with a Statutory Order made by a statutory

functionary who could not therefore, be allowed to

supplement the grounds of this order by later

explanations, the present is a case where neither a

statutory functions nor a statutory functionary is

involved but the transaction bears a commercial though

public character which can only be settled after

protracted discussion, clarification and consultation

with all interested persons. The principle of Mohinder

Singh Gill’s case has no application to the factual

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situation here. (emphasis supplied)

28. It was said that the principles of Natural Justice

had not been observed and that those who are most

interested in the Zoological Garden were not heard in

the matter before the decision was taken. We do not

think that anyone can have a justifiable grievance on

this score. The proposal to lease the Begumbari land

was public knowledge as we have seen. Such as those

as were really interested in the matter like the

Managing Committee of the Zoological Garden and the

Director of the Zoo did have their say in the matter. The

Public Undertakings Committee in its report discussed

the matter and invited the Government’s attention to

various factors. The matter was further discussed on

the floor of the Legislative Assembly. It is impossible to

agree with the submission that there was any failure to

observe principles of Natural Justice.” (emphasis

supplied)

68. It would be appropriate here to mention that it is a matter of

record that not only the objections received after public notice, but

even prior thereto in the form of objection applications dated

25.12.1999, 27.12.1999, 06.12,2001 and 26.06.2004 were also

taken into consideration by the municipality and that fact is

mentioned in its resolution dated 12.07.2004. Besides, a note has

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to be taken of the fact that in resolution dated 30.05.2005, the

Municipality incorporated certain conditions to be fulfilled by

respondent no.4. The conditions provided in the resolution are:

(i) It is “Vandha Saathe” that the land is resolved to

be sold to respondent no.4. When the phrase “Vandha

Saathe” is translated without reference to context, it

means ‘with objections’. This according to the learned

advocate for the petitioners would mean “along with

objections”, but on a careful reading with reference to

context to the ‘earlier and latter’ part of the resolution,

its meaning comes to ‘despite objections’. If the

Municipality wanted to sell the land ‘with objections’, it

could not have sold at all. It is possible to be sold only

when it is read as - “despite objections”.

(ii) The road having present width, a new road of the

same width is to be provided between vegetable market

and Gadhadi gate by the institution i.e. respondent

no.4.

(iii) The gate (Ghdhadi gate) situated near vegetable

market is to be maintained in the same position in

which it is existing today.

This Court has no hesitation in holding that prescribing/

incorporating these three conditions establishes the fact that the

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municipality was alive to ‘the objections received by it’, may be that

some of the objections are stated to have been received subsequent

to the time prescribed, but then learned senior advocate for the

municipality did make available to the Court for perusal all the

applications received, objecting to grant of land to respondent no.4.

On perusal of these applications, this Court found that the

objection applications which are contended to have been not taken

into consideration were very much there in other objection

applications and thus, stood considered by the Municipality.

In addition to this, it is also important and relevant to be taken note

that the person whose objection application is alleged to have been

not considered, has never made any grievance about the so called

‘non-consideration’ of his application. In view of the aforesaid fact,

the contention raised and pressed with vehemence is found to be

without any merit. Ultimately, what is required to be decided by

the Court is whether the action of the Municipality is arbitrary,

unreasonable and motivated by extraneous consideration and

requires to be interfered by this Court. But then, on careful

consideration of the record, the Court has found that, ‘the

Municipality has acted well within its powers with required

transparency right from the beginning’. Otherwise, the

Municipality could have avoided mentioning of the factum of

having received applications from respondent no.4 for grant of this

land. But the Municipality has not done so. The applications

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demanding the land in question by respondent no.4 are made

public and processed as per law. Not only that, the Municipality

has also mentioned the number of objections received by it.

Proceeding further, those objections are considered and that is

visible from the fact of prescribing conditions in the matter of sale

of land to respondent no.4.

71. This Court is conscious that, ‘in absence of any allegations of

mala fide’, the scope of judicial scrutiny of resolution passed by the

Municipality is limited. But, as the resolutions of the Municipality

are under challenge, all relevant aspects which are pressed into

service are examined and at the end of it, the Court has found that

the resolution of the Municipality cannot be said to be unjust,

arbitrary or irregular on any count.

The learned advocate for the petitioners is not able to dispute that,

(i) There is power vested with the municipality to take actions

enumerated in section 146 of the Act,

(ii) Actions enumerated in section 146 of the Act, includes power

to discontinue or stop up any street,

(iii) “Any street” includes a street which is operative or in use and

not only unused or redundant street.

(iv) The issue of ‘sentimental attachment’ of the saints and

devotees of Swaminarayan Sampraday to the road in question

could not be substantiated by producing any material and thus,

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claim is based on ‘no material’.

(v) Besides, the conduct of the petitioners is required to be taken

into consideration when Court is asked to take into consideration

the ‘sentimental attachment’ to this particular road; a map

showing the change of road within the complex of the petitioner-

institution is very much part of the record which shows that

petitioners decided to change the road in its own complex and if in

doing so religious sentiments are not offended, then contention

raised before this Court can be said to be motivated by any other

reason than the ‘reason of religious attachment’.

69. The contention raised by the learned advocate for the

petitioners about the ‘right to profess religion’ with reference to

Article 25 of the Constitution of India is also found to be without

any merit inasmuch as the learned advocate for the petitioners

could not dislodge the submission made by learned senior advocate

Mr.Shelat on behalf of respondent no.4 that none of the authentic

literatures of Swaminarayan sect provide, ‘return of procession of

‘Jal Jilni‘ on a very particular route’ to be an essential tenet of

religion, which, if not allowed to be performed, will amount to not

professing of the religion.

In fact, the literatures placed before the Court which are

incidentally published by petitioner-trust show otherwise. ‘Jal Jilni’

procession was taken out on five different occasions, at five

different places during the lifetime of Lord Swaminarayan. In none

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of the literature it is mentioned that this particular road (return

route of the procession) remains the same at all those five

occasions and therefore, it has become sacrosanct that if the

procession is not allowed to return from that particular route it will

amount to interference with the ‘right of professing religion’.

70. The learned advocate for the petitioners, having failed to find

any convincing answers to the aforesaid factual position, submitted

that the material which is placed before this Court was never

placed before the Municipality at the time of passing resolution

dated 12.07.2004 and 30.05.2005. Not only that, the material

which was placed before the Collector and /or the Government was

also not placed before the Municipality at the time of passing the

impugned resolutions. The learned advocate for the petitioners

submitted that this amounts to ‘justifying the resolutions of the

Municipality’ on the basis of material which was not placed before

the Municipality at the time of passing of the resolutions.

In the considered opinion of this Court the aforesaid submission of

the learned advocate is not acceptable for the simple reason that

the Court is examining the legality and validity of the resolutions of

the Municipality in light of the material which was placed before it.

It is not in dispute that applications of respondent were on record

of the Municipality, in those applications, activities carried by

respondent no.4 and the nature of activities was before the

Municipality. The objection applications and objections were

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before the Municipality. It is thereafter that the Municipality

passed resolutions which are sought to be challenged on various

grounds, which can be said to be elaboration of the objections

which were raised. That elaboration is replied at every stage i.e.

Collector, Government and this Court. But then, resolutions do

stand the test of ‘judicial scrutiny’ and are not found to be unjust,

arbitrary or irregular of their own and the additional material is the

reply to “elaboration”.

The fact remains that the applications with full details of the

activities carried on by respondent no.4 were before the

Municipality and taking that into consideration, the Municipality

was able to come to a conclusion that if the land is sold to

respondent no.4 to enable it to use the same for activities which

are set out in the applications, it will be nothing less than serving

of ‘public purpose’. Therefore, the Municipality in its wisdom, body

as a whole (the resolutions were passed unanimously – by everyone

present voting in favour), decided to follow the procedure

prescribed under section 146 of the Act passed resolution dated

12.07.2004, decided to invite objections by issuing public notice.

On receipt of objections, the Municipality did consider the material

placed before it and on careful consideration it found that the

demand of respondent no.4 can be acceded to and that the land can

be sold to respondent no.4 so as to see that respondent no.4 uses it

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for its ‘development activities’ which ultimately will be serving of

‘public purpose’. As the record stands, it cannot be said that the

Municipality was not alive to the fact that the demand is from

respondent no.4, who is not in any manner a person (an individual)

to carry on its commercial activities with an object of earning profit

at the cost of interest of public at large.

In view of the aforesaid facts, resolutions in question passed on the

basis of the material contained therein do stand the test of legality

and validity.

It is true that when the matter went to Collector, both the parties

tried to substantiate their claims by placing the relevant material.

That is how more material came to be placed before the Collector.

Similarly, when the matter went to the Government pursuant to the

judgement and order of the learned Single Judge of this Court, both

the parties put further material before the Government. But then,

as recorded hereinabove, material placed either before Collector or

the Government is supplementary and not the ‘sole material’ on the

basis of which resolutions are held to be valid. Even in absence of

this additional /supplementary material, as stated hereinabove,

validity of the resolution can be upheld on the basis of the material

which was placed before the Municipality. This Court is of the

opinion that the resolutions are valid even without seeking support

from the aforesaid material. Therefore, the aforesaid submission of

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the learned advocate for the petitioners is rejected.

71. The Court, in the process of considering the submissions

made by the learned advocate for the petitioners and the learned

advocates for the contesting parties, noticed that the petitioners

are trying to stall the grant of land one way of the other, that is

why all possible contentions are raised by the petitioners like (i) it

was argued that roads no.1 and 2 are ‘Prasadi’ roads, (ii) that lacs

of devotees and saints of Swaminarayan Sampraday are having

‘religious sentiments attached’ to the roads, (iii) the roads are

required to reach to the property bearing City Survey No.3281/1

(Raghav Mandir). (iv) people of Gadhda town are shocked by the

decision of the municipality to sell this land to respondent no.4 and

this is given in addition to the shock received by the people of

Gadhda town from the ‘closure of old vegetable market’ and

shifting of the same to a new place. Many more contentions of

similar nature are raised, but on careful consideration, this Court

found that these contentions are not based on any reliable material.

On the other hand, replies given to these contentions are found to

be acceptable. The contention that ‘religious sentiments are

attached to the roads’, is found to be a fake one inasmuch as, same

‘religious sentimental attachment’ is not maintained qua other

‘Prasadi roads’, etc. situated within the complex of the petitioners,

discussed in earlier part of this judgment. In light of that, the claim

about the ‘sentimental and religious attachment is found not worth

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accepting’. Similarly, it has come on record that after due inquiry

by the competent authority, it is found that there are other roads

available for approaching the property bearing Survey No.3281/1,

viz. ‘Raghav Mandir’, therefore, this claim is also not sustainable

and acceptable in law.

It has also come on record that majority of properties on both the

sides of road no.2 belong to respondent no.4. That being so,

question of inconvenience to other property owner, if the road is

closed by the Municipality, does not survive.

Similarly, the claim of the petitioners that on its return journey of

‘Jal Jilni’ procession there used to be ‘Padhramani’ at the residence

of the persons residing at road no.2, has become redundant

because now there being no residence on road no.2, there is no

question of ‘Padhramani’ taking place. In view of the aforesaid

discussion, the claim made by the petitioners about the right of the

residents does not survive.

72. As laid down by the Hon’ble the Apex Court in the matter of

‘considering right of the petitioners under Article 226 of the

Constitution of India’, ‘the right’ has to be ‘an established right’

and ‘right’ could be an ‘established right’ only when it is

‘adjudicated one’. In the present case, the claim of the petitioners

is that roads no.1 and 2 are ‘Prasadi’ roads and these roads are in

existence since time immemorial. These are the roads on which

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Lord Swaminarayan had walked bare-footed. These roads have a

very special religious sentimental attachment to lacs of devotees

and saints of Swaminarayan sect, visiting Gadhda. The learned

advocate for the petitioner in the alternative submitted that may be

that during the lifetime of Lord Swaminarayan, ‘Jal Jilni’ processing

was not taken to the same place and the same route and was taken

out on the routes and five different places mentioned in the

literature. But then, after Lord Swaminarayan left for heavenly

abode, only on this particular route, ‘Jal Jilni’ procession is taken

out.

73. Be that as it may, the fact remains that all these claims are

‘oral’ and without any supporting documentary evidence. That

being so, the same cannot be accepted by this Court. More so

when there is material on record in the form of literature published

by the petitioner trust itself, wherein this particular road is

nowhere mentioned to be ‘Prasadi’ road. This Court is not in a

position to accept the claim of the petitioners in a petition under

Article 226 of the Constitution of India.

74. The learned advocate for the petitioners submitted that the

rights/ claims of the petitioners were not accepted in Special Civil

Application No.14517 of 2006 and 15460 of 2006 and the same

were dismissed by this Court (learned Single Judge) on 02.09.2006

and petitioners were told that the Government will consider the

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claim of the petitioners while granting permission under section

65(2) of the Act.

The learned advocate for the petitioners submitted that when the

matter came before the Government for granting permission under

section 65(2) of the Act, the Government was of the opinion that as

there is a resolution passed under section 146 of the said Act, the

Government has to, after following the procedure, accord sanction.

The same was granted. The petitioners challenged the same by

filing Special Civil Application No.6552 of 2007. The learned

Advocate for the petitioners submitted that the application was

decided by the Government without being mindful of the directions

given by the learned Single Judge by judgment and order dated

02.09.2006. The order of the Government is to the effect that, ‘as

the Municipality has passed a valid resolution under section 146 of

the Act, approval is required to be granted’. The learned Advocate

for the petitioners submitted that this, in a popular parlance, can

be said that the petitioners are cut at both ends.

75. To consider the aforesaid submissions, the exact words of

directions issued in judgment and order dated 02.09.2006 along

with the exact wordings in which the Government passed order

granting approval are required to be taken note of, coupled with

the fact that the learned Judge dismissed Special Civil Application

No.6552 of 2007 and upheld the decision of the Government of

granting sanction.

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This Court is of the opinion that the submissions made by the

learned advocate for the petitioners are devoid of any substance for

two reasons;

(i) After SCAs No.14517 of 2006 and 15460 of 2006 were

decided, the petitioners had approached this Court by filing

Letters Patent Appeals No.122 of 2007 and 123 of 2007.

Those appeals were dismissed by the Division Bench of this

Court on 30.11.2007. Thus, the petitioners were not able to

convince the Division Bench to accept their claim. Not only

that, thereafter the petitioners filed review application being

MCA No.1292 of 2008, which too came to be rejected on

21.08.2008.

(ii) The learned Single Judge, after taking into

consideration the rival submissions, dismissed Special Civil

Application No.6552 of 2007. Similarly, this Court also

carefully considered the contents of the order of the

Government dated 29.01.2007 and the subsequent orders of

the Collector dated 20.02.2007 and 02.03.2007, whereby it is

held that the contentions raised by the petitioners are

without any merit. To illustrate, it is specifically mentioned

that the contentions raised by the petitioners that the land

does not belong to the municipality and ownership of that

land is that of the District Panchayat was found without any

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substance by authority on inquiry. Similarly, the contention

raised by the petitioners that the petitioners do not have

approach road to the property bearing City Survey No.3282/1

is also found to be incorrect. The authorities, at the end of

inquiry, found that there are alternative roads available to

approach that property.

76. In view of the aforesaid discussion, Special Civil Applications

No.14517 of 2006, 15460 of 2006 and 6552 of 2007 fail and the

same are dismissed. In view of the fact that the learned advocates

agreed to get Special Civil Application No.6552 of 2007 heard,

Letters Patent Appeal No.608 of 2008 does not survive and it is

disposed of accordingly. As Letters Patent Appeal No.608 of 2008

is disposed of ‘no orders’ on Civil Applications No.6711 of 2008 and

7061 of 2008; the same are disposed of accordingly. Interim orders

made in the Civil Applications are vacated.

77. The amount deposited by the petitioners is ordered to be

refunded to the petitioners by an account payee cheque within one

week from the date of receipt of this judgement.

78. Learned advocate Mr.Mangukiya for the petitioners

requested that the ‘status quo’ granted by the Hon’ble the Apex

Court may be ordered to be continued for four weeks. The request

is granted. Status quo granted by the Hon’ble the Apex Court vide

order dated 10.04.2012 in Civil Appeals No.1529-1530 of 2009 and

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1593-1594 of 2009 is ordered to continue for a period of four week

from the date of receipt of this order.

(RAVI R. TRIPATHI, J.)

PER HONOURABLE MR.JUSTICE R.D. KOTHARI, J.

(concurring)

While I respectfully agree with my learned Brother, Hon’ble

Mr.Justice Ravi R. Tripathi, I may add the following few lines:

1. Street is in issue. Some streets are very famous.

Wall Street has become famous because of New York

Stock Exchange. Even though New York Stock

Exchange established in the said street in 1825, till

1930’s era, streets of New York were considered to be

very narrow street. It is interesting to note that famous

Trinity Church also located in Wall Street and for quite

some time it was the tallest building in New York.

Then, at home, our Bombay Stock Exchange of 28

story is in Dalal Street. Reportedly, land in Dalal Street

is as costly as in any developed country. Be that as it

may, the way in which the respondent No.4 has

projected some of its world level activities, it may not

be exaggeration to say that street in question in the

present case is on the way to become famous street.

2. First about construction of Section 146. It was

submitted that power conferred by provision is in

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nature of enabling powers. Prima facie, opening words,

‘it shall be lawful’ convey the discretion. Chapter-XI in

the Act is titled, ‘Municipal Powers and Offences.’ It is

omnibus and general title. Chapter-XI contains about

14 different sub-heads and the first sub-head of it is,

‘powers in respect of the streets’. It consists of 5

sections (Sections 146 to 150 plus sub-sections of it).

Section 2(22) defines ‘public street’ and Section 2 (23)

defines ‘private street’. For answering the points

raised herein, meaning or definition of ‘street’ is not of

much importance, except the fact that almost all

properties abutting to the street in question are now

acquired by respondent No.4 and that being so, what

is its consequence – is such street continue to be a

public street ? To this, we may refer little later.

3. If public street is to be discontinued, whether the

municipality has power to discontinue the same or not.

It was conceded by the learned advocate for the

petitioners that plain reading of section would show

that municipality does have such powers. It was only

the mode and manner of exercise of power and also

invoking of such power in the facts and circumstances

of the present case – that is in dispute. To test the

objections raised by the petitioners, the question may

be asked – what municipality is required to do when

the public street is to be discontinued ?

4. The municipality is required to call for the

objections and consider the same and it also requires

previous sanction of the State Government under

Section 65(2) in case of sale of the street. Further, the

municipality is also required to draw the conclusion

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that same is not required for the public street or for

any other purposes of the Act.

5. First in sequence is, proposal for the same. The

proposal may be either for the sale – as in the present

case - or it may be for discontinuation of street. The

second step is to comply with the requirement of

recording whether the street is required for public

street or not, or it requires for any other purposes of

the Act or not. Reference to ‘proposal’ at as many as

five places in the proviso read with concluding part of

Section 146(1) suggests that recording by the

municipality that the said street is not required for the

public street or for any other purposes of the Act,

should precede the issuance of public notice by the

Chief Officer inviting the objections. It is interesting to

note that in case of any other instances such as

widening of the street or improving it or even to open

the new street etc. – objections of resident are not

required to call for. It is only in case of discontinuation

of the public street that the objections by the

“residents” are required to be considered.

6. The opening part of the proviso suggests that

mandate is given to the municipality that prior to the

sanctioning of the proposal, the municipality is

required to issue the public notice in the manner as

specified therein. The intention appears to be that

proposal for discontinuation of the street which is no

longer required for municipal purposes, should be

considered first or it should precede the consideration

of objections of the resident of the municipality. It is

only thereafter that the municipality would ‘consider’

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the objection received by it and thereafter, it can

proceed to sanction the proposal for discontinuation of

the street.

7. As to the mode of public notice; as to the time : it

should be given at least one month’s time – inviting

objections. As to mode of publication : it should be

placed on the notice board of the municipality and it

should be placed on the street sought to be

discontinued or on part of the said street. Further, the

said notice is to be signed by the Chief Officer.

8. The last requirement is, ‘consideration of the

written objections received by the municipality.’

Herein concluding part of the proviso suggests that

such objections are required to be considered

irrespective of the fact that they are received after

expiry of notice period given or are received during

the notice period – if they are received before such

meeting is convened.

9. In short, Section 146 provides thus;

(i) It is permissible for the municipality to deal with

public street in any manner;

(ii) In case of lease or sale of public street, previous

sanction of the State Government as provided

under Section 65(2) is necessary;

(iii) “theretofore” has important and specific

meaning. It conveys that the said street till the

municipality resolves otherwise – to which

reference is made next i.e. (iv) – the said street

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was used as a public street;

(iv) The municipality is required to record that said

street is not required as a public street or for any

other purposes (Sections 87 and 91) of the Act;

(v) In case of permanent discontinuation of the

street, objections of the “residents” are required

to be invited;

(vi) The municipality cannot proceed to sanction its

proposal without considering the objections of the

“residents”;

(vii) In order to enable the residents to file an

objection, public notice as envisaged in the

proviso, should be published;

(viii) Such notice should be signed by the Chief Officer.

It should be placed on notice board of the

municipal office and on the street sought to be

discontinued or on the part of the said street;

(ix) Later part of the proviso dilutes the requirements

of filing objections within the time stipulated in

the notice, because it directs the municipality to

consider objections that are received prior to

convening of the meeting; and

(x) Objections should be in writing. It does not

provide for opportunity of making oral

representation.

***

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10. Now, brief reference may be made to submissions

that when statute prescribes mode to do particular

thing, then all other modes are excluded. It was urged

by the petitioners that when Statute has laid down

mode for doing certain things, then those things must

be done in that mode and manner and other mode is

considered as prohibited. In support of this

submission, reliance was placed in Ramchandra

Keshav’s case (AIR 1975 SC 915).

11. Plain answer to this submission is – the other side

is not relying or invoking any other or alternate mode

of performance. It is not that, that by referring to some

provision – other than Section 146, other side defends

its case. It is not so. The submission of the petitioners

in essence is that Section 146 should be read as a

mandatory. This submission is difficult to accept. As

referred above, the provision is in nature of enabling

or permissive exercise of power conferred upon its

delegated body by the legislative authority. One of the

commonly used test for considering that any given

provision is mandatory or directory is – to ask, does it

lay down consequence of non-compliance of the said

provision ? Herein Section 146 does not lay down any

consequence for non-compliance of the provision.

Hence, by the said test, it can be said that the

provision is not mandatory.

12. Use of ‘subject to’ takes care of lease or sale of

the public street by the municipality – wherein

previous sanction of the State Government is made

necessary – and use of, ‘unless’ in the proviso restrains

the municipality from discontinuing the public street,

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prior to considering the objections of the residents.

These safeguards are sufficient checks on the power of

the municipal body. It would be enough to say that it is

total non-compliance – which is unlikely in the practice

or in reality, in the present era - may not be tolerated

and in that case, the action of the municipality would

be struck down. In all other cases, it all depends on

degree and extent of non-compliance and also on the

circumstances of the case. Beyond this, it is difficult to

generalize and to say that provision is mandatory or it

is directory, key to the answer lies in the fact that

provision is of enabling nature. Section 146 is enabling

in its nature.

13. In the present case, street in dispute was sought

to be discontinued as it was resolved by the

municipality to sell it to respondent No.4. One of the

principal submissions of learned advocate for the

petitioners is – a street discontinued may be sold but,

for the purpose of selling, a street cannot be

discontinued. Shri Mihir Joshi, learned Senior

Advocate for respondent No.4 has punctured this

submission by raising the question, ‘Why not ?’ It was

rightly submitted by Shri Joshi that even ‘live’ street

also can be sold and therefore, the same may be

discontinued. It would not be correct to read the

limitations on the powers of the municipality as

suggested by learned advocate for the petitioners, viz.,

only the street which is otherwise discontinued may

be sold and for the purpose of sale, street cannot be

discontinued.

14. At least, on three points, breach or non-

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compliance of Section 146 has to be conceded;

(a) There is no proposal for discontinuation of the

street. The proposal before the municipality was

only for sale;

(b) The municipality has not recorded, as required

under Section 146(1), that public street is not

required as a public street or that it is not

required for any other purpose of the Act; and

(c) At least one objection, though received in time as

per the record of municipality, the same was

wrongly excluded as being time barred.

15. The above breach is clear on record. To take the

last point of breach first, it would be erroneous – in the

circumstances of the present case – to say that the said

breach has a potency to vitiate the resolution / decision

of the municipality. It may be noted that the said

resolution of the municipality was carried before the

Collector and thereafter, before Joint Secretary (State)

– via writ petitions filed before the High Court. It may

be stated that the objector, whose objection is said to

be excluded wrongly as being time barred, has also

independently filed an objection application before the

Joint Secretary (State). Both the authorities, the

Collector and the Joint Secretary, in their quite

elaborate order, have considered all the points raised

before them. The submission was advanced that

Mr.Natwarlal, whose objection application was

wrongly excluded from consideration, had prayed for

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personal hearing and for that reason also, viz.,

admitted fact of not providing the personal hearing to

any one, resolution / decision of the municipality is

vitiated. This submission is also not possible to accept.

Section 146 does not contemplate the personal

hearing. Then, if we take into consideration the

objections filed by Mr.Natwarlal – in order to test the

strength of the submission – it would appear that point

and objection raised therein in the application are the

same and identical which are raised by the other

objectors in the applications. That apart, the fact that

Mr. Natwarlal has also filed objections before

Collector/Joint Secretary, reduces the grievance of

non-consideration of objections by the Municipality- as

technical breach. Further, it may also be stated that

learned Senior Advocate Mr. Nirupam Nanavaty has

rightly submitted, while replying the submission on

breach of the principles of natural justice, that the

petitioner ought to show what prejudice is caused to

him by the alleged breach of principles of natural

justice. It was submitted that the petitioner has not

shown any such prejudice caused to it. The objection of

non-consideration of objections, in view of above,

cannot have any vitiating effect.

16. Now, second and first breach may be considered

together. Initiation of proposal was by the applications

given by respondent No.4 to the municipal body,

requesting the later to grant them the land / street in

dispute. Section 146 (1) permits the municipality to

sell the public street or part of it. Hence, no objection

can be raised - if the proceedings are initiated by an

application by the prospective purchaser. The steps

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that municipality is required to take upon receiving of

an application, are important. If the municipality, upon

receipt of the proposal for sale and upon

consideration of it, decides to approve the same, then

it is required to record that the said land / public street

no longer required as a public street or for any other

purposes of the Act. This exercise by the municipality

is missing in this case. What the municipality appears

to have done is, - issuing of public notice and inviting

the objections from the residents. It is not possible to

read the advertisement – inviting objection – as an

implied decision to discontinue the street. The reason

is, the municipality has at no point of time consciously

applied its mind for the closure of the street nor there

is ‘prior consideration’ that the same is not required

for any other purposes. In short, non-compliance of

Section 146 to this extent has to be conceded.

17. It is one thing to say that action of municipality is

not strictly in accordance with the law or act of

municipality is in contravention of part of the provision

but, the consequence flow from it and further granting

of relief on that basis is quite different thing. In the

present case, petitioners’ claim is based mainly on two

grounds; (i) the disputed street is religious route used

by Lord Swaminarayan during his life time and

thereafter, by his followers for almost 180 years.

Secondly, contravention of Section 146. As to the first

ground, it was rightly pointed out that there is no

factual foundation of the claim. Learned advocate for

the petitioners wanted the Court to draw inference

from certain denial or failure to make denial on the

part of other side. This can hardly help the petitioners.

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Either there should be clear factual material in support

of the assertion or on the other hand, as submitted by

learned Senior Advocate Mr.Mihir Joshi, right

asserted by the petitioners ought to have been

adjudicated by the competent authority. In absence of

either, claim of petitioners is difficult to believe. As to

the second ground, it is important to bear in mind that

Section 146 is just enabling provision. On the basis of

plea of violation of Section 146, the petitioners can

successfully urge his / its case against the municipality

only when either violation is of a grave nature e.g. non

inviting any objection from the resident or when act of

municipality suffers from total non-application of mind

or its action smack malafide or ulterior motive or in

such like cases. Thus, in all such circumstances – it is

the typical facts and circumstances of a given case that

would decide whether the consequence that flows from

action of the municipality are of vitiating nature or not.

Further, it should be borne in mind that Section 146

does not give any right of oral representation. It only

gives right to file an objection. In providing for such a

right of representation, focus is on resident of the

concerned street. In the present case, almost all the

properties abutting to the disputed street came to be

purchased by respondent No.4, Trust. This reduces the

right to file an objection as a mere academic right.

Thus, no case is made out either on the ground that

disputed street was used as a religious route for last

180 years or on the ground that there is contravention

of Section 146 of such a nature that it has potency to

invalidate the action of the municipality. Further, it

can be said that the petitioner has not made out any

case for issuance of any writ because the respondent

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No.4 has not only purchased all the properties

situated in the disputed street – it has also purchased

the disputed public street itself by paying the market

price as fixed by the Government and the sale deed of

it is also executed. No case for status quo ante relief.

18. Assertion that almost all the properties situated in

public street in question belong to respondent No.4 is

peculiar feature of the case.

19. Street is a misnomer. National Geographic in the

opening of this new century has identified 10 most

exciting streets of the world. Chandni Chowk of Delhi

is one of them. Is Chandni Chowk is a street, one may

ask the question. The same question may be asked

about the disputed street in the present case, although

the context is different herein. Here, the question that

street is a public street or not, arises as almost all the

properties abutting to the public street are now

purchased by respondent No.4. Entity of one or single

– be it living person or an institution is antonyms or

contradictory to the word ‘public’. To treat the said

street now as public street would amount to make

false retreat.

20. The present case is of exceptional nature. It is

undisputed fact that almost all the properties situated

in the disputed street are purchased by the

respondent No.4. This is unusual. It is the situation

that must not be in contemplation of the Legislature.

In these circumstances, how long and how far the

public street in question can continue to remain as

public street, is a question. Further, different activities

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of respondent No.4 come very close to the

discretionary functions of the municipality (Section

91). Considering the range of its activities and volume

of its work – as it is sought to be highlighted during the

hearing – it is clear that annual budget of respondent

No.4 must be very significantly higher than the

municipal budget of respondent No.3 for the entire

city. Under the circumstances, it would not be

erroneous to say that the municipality’s power to

regulate and control public street stands reduced to

formal, notional or academic one and that the

municipality has become a formal entity. In this

regard, speaking of monetary aspect, it may be noted

that, the petitioner – Trust is also fairly well off, in the

sense that during the course of hearing, in support of

the submission that sale of street at over Rs.17 lacs

and odd is on the lower side, learned advocate for the

petitioners submitted that petitioners are ready and

willing to pay the price three times than the price paid

by the respondent No.4 for the street in question. It

was submitted that they would pay such price within

24 hours. Such submission led the Court to order to

deposit Rs.50 lacs to test the bona fides and to

consider readiness of petitioner and then, the

petitioner did deposited the said amount within said

time. Further, what is important to note is upon

depositing the amount it was submitted that

petitioners and respondent No.4 are in a position to

deposit / pay “any amount”. It may be stated that upon

conclusion of submission by the learned advocates for

the parties, the Court had passed the order to return

the amount to the petitioner deposited by it. ----- It is

not in dispute that the said short term deposit of

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amount has no relevance or bearing with the merits of

the case.

The reason for reference to this aspect is this. In

sharp contrast to economic position of petitioner and

respondent No.4 consider economic condition of

Municipality (respondent No.3). It is on record that

one of the conditions imposed by the Government

while granting sanction for sale of the street is to

utilize 50% of the amount of sale proceeds for unpaid

amount of dues of electricity bill of the Municipality.

In this case, the petitioner and respondent No.4 –

both powerful enough in terms of finance, are involved

in legal battle wherein poor municipality with whom

ostensibly power in respect of dispute between the

petitioner and respondent No.4 lies, dragged into the

battle by the parties. This is the odd situation. The

questions thrown in for consideration by this situation

cannot be usual, formal or routine.

21. Hitherto the public body and the Government

believed to be powerful qua the subject,- be it a private

individual or any institution. Perhaps now it is not so,

at least in some respect and in few areas. When

mighty private institution intervenes and takes interest

in local affair, the deeper question concerning the

scope of power of the delegated authority to regulate

its affair becomes more complex. This development

has potential to dissolve “powers” that hitherto

centered around the public body, i.e. Government. Like

belief as to might of the Government that was hitherto

appear to be real, so also the challenge to the said

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belief now posed is real. Power equation is on the

move. The facts and circumstances of the present case

and the submissions made by different learned Senior

Advocates appearing for the parties does, in a sense,

makes this observance relevant. The present case

points to the need for introducing suitable legislative

provision.

22. As observed above, irregularity crept in this case

qua Section 146 of the Gujarat Municipalities Act is

not of a vitiating nature. I agree with the conclusion

recorded by my learned Brother.

(R.D. KOTHARI, J.)

ENCLOSURES TO THE JUDGEMENT:

1. Gadhada Map – 1923 AD - on page 165.

2. Sketch of original 1923 map of Gadhada Town – on page 166.

The Special Civil Applications, the Letters Patent Appeal and

the Civil Applications stand disposed of in terms of the concurring

judgment.

(RAVI R. TRIPATHI, J.)

(R.D. KOTHARI, J.)

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karim

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Documents

Final Judgement Gopinathji Devmandir Trust vs. State of Gujarat