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LPA/909/2010 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 909 of 2010
In
SPECIAL
CIVIL APPLICATION No. 3744 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
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 ?
=========================================================
DHARMESH
CHANDULAL PUROHIT - Appellant(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 9 - Respondent(s)
=========================================================
Appearance
:
MR
BS PATEL WITH MR ARPIT P PATEL
for
Appellant(s) : 1,
MR UA TRIVEDI, AGP for Respondent(s) : 1 - 4.
MR
JR NANAVATI, WITH SUNIL B PARIKH for Respondent(s) : 5 -
10.
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 18/10/2010
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
The
appeal is directed against order dated 29.3.2010 passed by Learned
Single Judge in Special Civil Application No.3744/2010 by which the
petition of the present appellant came to be dismissed. This case
has a chequered history.
Briefly
stated facts are as follows :
2.1 On
or around 11.8.1976 one M/s. Shakti Brick Works, a partnership firm
filed form under Section 6(1) of the Urban Land (Ceiling and
Regulation) Act ( the ULC Act for short) disclosing its land
holding bearing survey no.154-A admeasuring 2 acres 10 gunthas and
43 sq. mtrs and survey no.154-B admeasuring 3 gunthas and 4 sq. mtrs
both of village Naroda, Ahmedabad(hereinafter referred to as the
said land ). ULC authorities adjudicated on the question of excess
land and issued notification under Section 10(1) of the ULC Act with
respect to the lands found excess of the ceiling limit. Notification
under Section 10(3) of the ULC Act was issued on 29.1.1997.
Notification under Section 10(5) of the ULC Act was issued on
5.8.1997. The competent authority took possession of the land on
1.12.1997 drawing panchnama.
2.2 On
2.4.1998 City Mamlatdar, Ahmedabad issued a notice purportedly under
Section 61 of the Bombay land Revenue Code to the original
petitioner (i.e. present appellant) Dharmesh Chandulal Purohit
stating that the said land is of the ownership of the Government.
Talati, Naroda in his statement dated 20.11.1998 has sated that on
the said land petitioner has unauthorisedly constructed five rooms
in 66 sq. mtrs. of land and thereby encroached on the Government
land. He was therefore called upon to show cause why steps should
not be taken under Section 61 of the Bombay Land Revenue Code to
evict his occupation and to recover fine for such encroachment.
2.3 In
response to the notice, petitioner filed reply on 17.4.1998
contending that he is in possession of the said property since year
1984. He had occupied the land as partner for which he however, does
not have any documents presently. If the land is Government land,
it may be allotted to him permanently and his encroachment may
kindly not be removed.
2.4
On 6.5.1998, the City Mamlatdar however, passed an order directing
removal of the encroachment of the petitioner. It was recorded that
out of 20407 sq. mtrs. of land of Survey No. 154-A which has become
the land of the ownership of the Government, the petitioner Dharmesh
Chandulal Purohit has occupied 66 sq. mtrs. of land by constructing
five rooms. He has applied for grant of land on permanent basis on
payment of fine. However, this request is not required to be
accepted. He therefore, ordered that encroachment be removed. Though
the petitioner approached Additional Collector ULC, challenging the
order of Mamlatdar and also prayed for regularisation of his
possession, admittedly, such request was not accepted. In the
meantime, proceedings under the ULC Act continued.
2.5 Eventually,
three separate petitions came to be filed before this Court namely
Special Civil Application No. 8670/2001, Special Civil Application
No.5963/2002 and Special Civil Application No.452/2001.
2.6 Special
Civil Application No.8670/2001 was filed on behalf of Shakti Brick
Works, a partnership firm challenging the oder passed by the
authorities under the ULC Act. Special Civil Application
No.5963/2002 came to be filed by Dharmesh Chandulal Purohit i.e.
the present appellant claiming to have right, title and interest
over the said land claiming to be a partner of the said partnership
firm. Special Civil Application No. 452/2001 came to be filed by
persons who were allotted the said land by the Government but who
were unable to get possession thereof on account of legal
proceedings.
2.7 All
these petitions came to be disposed of by Learned Single Judge by a
common judgement dated 29.3.2007. Learned Judge was of the opinion
that possession of the land was not taken by the Government in
accordance with law. No procedure as envisaged under the Act was
followed. Notification under Sections 10(1), 10(3) and 10(5) of the
Act as well as possession panchnama were not in accordance with law.
There was thus no vesting of the land in Government nor can the
Government be stated to be in lawful possession thereof. On the
basis of these findings, Learned Single Judge was pleased to allow
Special Civil Application No.8670/2001 filed on behalf of Shakti
Brick Works and set aside orders under the ULC Act.
With
respect to Special Civil Application No.5963/2002 filed by the
present appellant, it was observed that he is unable to point out
how he is the owner of the property in question. It was observed
that he had not filled in form under Section 6 of the ULC Act.
Before the competent authority, he had never remained present. No
partnership deed was produced. He was unable to establish his right
over the property. He was permitted to present copy of partnership
deed before the High Court also. He never produced such document. It
was therefore, held that no material has been produced on record by
him regarding proof of ownership of the land. It was therefore,
concluded that he had no right, title or interest over the land in
question. It was also noted that Civil Suits with respect to this
land filed by him have already been dismissed.
With
respect to Special Civil Application No.452/2001, the allotees of
the land by the Government, the Learned Single Judge observed that
since order of the competent authority is set aside, all
consequential orders also stand quashed. It would therefore, be for
the State to decide which new land should be allotted to the said
persons. Government was therefore directed to consider their case
afresh sympathetically and expeditiously.
2.8 The
present petitioner challenged the order of the Learned Single Judge
in Letters Patent Appeal. However, such appeal also came to be
dismissed on 6.8.2007 wherein Division Bench also observed that he
has not produced any evidence supporting his claim that he was
partner of the firm Shakti Brick Works. While dismissing the appeal,
however, the Division Bench granted liberty to the petitioner to
take appropriate steps under the law in the Civil Court, if he had
any right.
2.9 It
is not in dispute that subsequently the petitioner also instituted
Civil Suit no. 86/2008 wherein his injunction application came to be
rejected. He preferred Appeal from Order against such rejection. It
also came to be dismissed by this Court by order dated 5.11.2009.
Though the petitioner claims to have filed SLP against the said
order, it is not in dispute that so far no interim order has been
passed in his favour by the Apex Court.
2.10 Since
the petitioner failed to establish his right, title or interest over
such property and failed to get any protection in his favour from
the Civil Court, it appears that the Government initiated steps to
evict him from the property in question. By inter-department
communication dated 29.1.2010 produced at Annexure-A to the
petition, Revenue Department on the representation on behalf of
Shakti Brick Works, the partnership firm, conveyed to the Collector
that the petitioner’s encroachment is required to be removed
immediately. It is this communication that the petitioner challenged
in the writ petition contending that the State had no power to
invoke Section 61 of the Bombay Land Revenue Code since it was
question of private dispute and land did not belong to the State
Government. This petition came to be dismissed by the Learned Single
Judge as mentioned earlier by observing that :
4.
It is clear from the above narration of relevant facts that the
petitioner is yet to establish his right to possess the lands in
question either as an heir of the erstwhile partner of Shakti Brick
Works or on any other basis. His attempt at protecting his
possession by obtaining injunction orders from the Civil Court and
this Court have already failed, and without being in possession he is
seeking to challenge the orders and communications between two
Government Officers. Therefore the petition is dismissed only on the
ground of the petitioner having no locus-standi and his civil
litigation being pending before the appropriate Civil Court.
5. It
is clarified at the request of learned counsel Mr.B.S.Patel that the
Court has not entered into merits, legality or otherwise of the
impugned orders or communications.
Before
us, learned counsel for the appellant vehemently contended that the
State machinery was misused for private gain. The appellant was in
possession of the land since year 1984. Once ULC proceedings came to
be terminated by High Court quashing orders passed by the
authorities below and declared possession of the Government illegal,
Section 61 of the Bombay Land Revenue Code could not have been
invoked.
3.1 He
further contended that previously for this very purpose
Ghanshyambhai B. Rangvani acting on behalf of Shakti Brick Works,
the partnership firm, had approached the High Court seeking
direction to the Government to evict the petitioner from property in
question. However such request was turned down.
On
the other hand learned counsel Shri Nanavati appearing for
respondents no. 5 to 10 contended that the petitioner failed to
establish any right, title or interest over the property before any
Court or forum. At no stage, he was in picture in the ULC
proceedings. Section 6(1) form was filled on behalf of the
partnership. Petitioner has not produced any document to show that
he was partner thereof. His petition came to be dismissed by the
Learned Single Judge. Division Bench also relegated him to civil
proceedings. No stay has been granted in suit filed by him later on.
Previously, his suits were also dismissed.
Upon
hearing the advocates and perusal of the documents, it becomes clear
that at all stages the petitioner has failed to establish the
legality of his possession. He has been adopting contradictory
stands. Though previously his stand was, that as a partner of the
said firm he had come upon possession, it appears that in subsequent
suit filed by him his stand is that he has become owner of the
property by adverse possession. Be that as it may, we do not propose
to make any further observations with respect to these issues since
the Civil Suit filed by the petitioner is still pending. Suffice it
to say that he has not been able to produce any material to protect
his possession. Importantly, when the land was declared surplus
under the ULC Act and possession was purportedly taken over by the
Government, his occupation was held to be unauthorised. After
issuance of notice and receiving his response, Mamlatdar on 6.5.1998
ordered his eviction. This order was never disturbed. Before the
Mamlatdar in response to the show cause notice he had contended that
if his possession was found unauthorised, Government may regularise
the same upon collection of fine. In view of such overwhelming facts
against the petitioner, we see no reason to allow Letters Patent
Appeal. Though we have our doubt whether after the Learned Single
Judge quashed the orders of ULC authorities, powers under Section 61
of the Bombay Land Revenue Code could have been invoked, in facts of
the present case, now that possession has already been taken over,
we do not find it appropriate to grant any relief to the appellant
in exercise of discretionary writ jurisdiction, particularly, when
he has failed before several Courts to prima facie establish his
right, title or interest over the property in question.
In
view of this we also do not propose to opine on the stand of
respondents no. 5 to 10 that the present petitioner has no material
to show that he had entered into the land prior to 1997 (i.e. when
the Government took possession of the land from the original owners)
and that all documents pertained to period post 1997 and that
therefore, Government had to return the possession of the land to
the partnership firm upon quashing the orders under the ULC Act
after removing such encroachments.
In
the result, appeal fails. Same is dismissed.
(S.J.Mukhopadhaya,C.J.)
(Akil
Kureshi,J.)
(raghu)
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