JUDGMENT
K.A. Puj, J.
1. Special Civil Application No. 1312, 1339, 2978, 2979 and 3305 of 2003 were fixed for hearing on 22.08.2003 and this Court has passed the following order in the open Court.
“All these matters are called out in the first session. Mr. M.B. Parikh, learned advocate appearing for the petitioner prays time. However, at this request all these matters are kept at 2.15 p.m. When these matters are called out in second session he is not present. Hence all these matters are required to be dismissed for default. Even on merits also the Collector has passed the order on 5.6.2000 forfeiting the land in question. The said order was challenged in revision before Secretary, Revenue Department (Appeals) and the said appeal decided on 27th April, 2001. Against this order the present petitions are filed. Since there is no concurrent finding of both the authorities below and there is no substance any of these appeals, all these petitions are dismissed at threshold.”
2. After the above order is dictated and before it is signed, Mr. M.B. Parikh, learned advocate appearing on behalf of the petitioners submitted that Mr. J.M. Patel is appearing as a counsel on behalf of the petitioners in these matters and since he is on leave today, the petitioners may be given an opportunity to make their submissions on the merits of the matter. He has further submitted that S.C.A. No. 3754 of 2001 is pending before this Court and all the present Special Civil Applications are filed as a result of the order passed by this Court in the said Special Civil Application and hence, the said S.C.A. may also be taken up for hearing. Accordingly, S.C.A. No. 3754 of 2001 along with S.C.A. Nos. 1312, 1339. 2978, 2979 and 3305 of 2003 are ordered to be heard on 25.08.2003 and that is how all these matters are heard today by this Court.
3. S.C.A. No. 3754 of 2001 is filed by five petitioners under Articles 226 and 227 of the Constitution of India questioning the legality and validity of an order dtd. 27.04.2001 passed by Special Secretary (Appeals), Revenue Department, Gujarat Government, whereby the Learned Special Secretary rejected the revision application No. 17 of 2001 filed by the petitioners against five separate orders passed by the Collector, Ahmedabad on 05.06.2000. The petitioners had filed application before the Collector, Ahmedabad for permission to transfer the lands by way of sale which are under the legal occupation of Tahirbhai Rasulbhai (since expired), Shri Dilipsinh Pratapsinh Rawal, Shri Ajitbhai Bholabhai, Shri Mahendrakumar Rajaram and Shri Rameshchandra Jaisinhbhai in favour of Hajiwali Mohammed, the power of attorney holder of Tahirbhai Rasulbhai (since deceased) represented by his son and legal representative, Shri Sabbir Hussein Tahirbhai, Shri Dilipsinh Pratapsinh Rawal, proprietor of Jyoti Transport Co., Shri Ajitbhai Bholabhai, Shri Mahendrakumar Rajaram and Shri Rameshchandra Jaisinhbhai. The Collector vide his five orders passed in Appeal on 05.06.2000 rejected the application for permission and ordered the cancellation of the original grant made in favour of the five allottees and further directed that the land in question be forfeited to the Government.
4. The brief facts giving rise to the present petitions are that in 1973, District Collector, Ahmedabad granted certain lands to the following five persons on conditions mentioned in the respective orders of the grant.
Sr. Name Area in Sq.
No. Mtrs.
=== ===== ===========
01. Shri Tahirbhai Rasulbhai 25.36
02. Shri Jyoti Transport, a
Concern owned by Shri
Dilipsinh Pratapsinh Rawal
as its sole proprietor 25.82
03. Shri Ajitbhai Bholabhai 25.26
04. Shri Mahendrakumar Rajaram 25.45
05. Shri Rameshchandra Jaisinhbhai 25.36
5. One of the conditions contained in the said order of the Collector dtd. 21.04.1973 granting the above lands, was that the land should not be transferred to any one else without permission of the Collector. The grant of the land was made on the condition of new and impartable tenure.
6. It is the case of the petitioner that the petitioner needed the above referred land for his business of selling vegetables and fruits and hence, he entered into a Banakhat with the aforesaid allottees upon payment of appropriate consideration. The aforesaid allottees executed Power of Attorney in favour of petitioners and accordingly, the petitioner was given possession of the land in question. Despite the fact that the Banakhat was executed in favour of petitioner by the aforesaid allottees, City Survey Superintendent, Ahmedabad issued notice to the petitioner under Section 77 of the Land Revenue Code on the ground of unauthorised occupation. The petitioner, thereafter, made an application to the Collector, Ahmedabad on 27.12.1999 on behalf of the aforesaid five allottees who have executed the Power of Attorney in favour of the petitioner. Without passing any order on the said applications, the Collector initiated action against the Land Revenue Code for cancellation of the grant of land that the condition of grant had been violated by the allottees. The Collector, Ahmedabad thereafter passed an order on 05.06.2000, cancelling the grant of land which has been granted on 21.04.1973 and directed that the land along with superstructures, if any, be forfeited to the Government without compensation.
7. Being aggrieved and dissatisfied with the said order of the Collector, a Revision Application was filed before the Special Secretary (Appeals), Revenue Department, Government of Gujarat, Gandhinagar. The Special Secretary (Appeals) has passed a common order dtd. 27.04.2001 rejecting the Revision Application and pursuant to the order passed by the Special Secretary (Appeals), notices under Section 61 of the Bombay Land Revenue Code have been issued by the City Survey Superintendent on 11.05.2001, calling for the explanations from the petitioners as to why appropriate action for encroachment of the lands in question should not be taken against them.
8. It is this order of the Collector passed on 05.06.2000 as well as the order of the Special Secretary passed on 27.04.2001 which are challenged by the petitioners in the present petition being S.C.A. No. 3754 of 2001.
9. The grounds raised in the above petition were that the Special Secretary has not taken into consideration the plea raised by the petitioners that while applications for permission of the transfer of the land by the original allottees in favour of the petitioner who is holding their Power of Attorney, were yet to be considered by the Collector and while the applications for permission were pending, the Collector should not have initiated action for forfeiture of the land. It was further contended that the offending transfer of the land was a bonafide transfer which was agreed by the original allottees after receiving proper consideration from the petitioner. The petitioner wanted to use the said land for his bonafide trade of vegetables and fruits. The transfer of the land was stipulated to be along with the construction exist on the land. It was further contended that the petitioner was ready and willing to pay occupancy price and premium that may be determined by the Revenue Authorities on the basis of current market value. It is further contended that in similar situations, the permissions have been granted by the authorities concerned to transfer the land to other allottees, whose allotment were simultaneous with the present original allottees with whom the petitioner has entered into Banakhat. It is also contended that if the permission is not granted and the land is forfeited, the petitioner would suffer an irreparable loss and injury.
10. In S.C.A. No. 3754/2001 Affidavit-in-reply was filed on 19.06.2001 by the respondent No. 5, namely, Safi Mohmmed Rahematkhan Pathan raising an objection that the petitioners have not filed separate petitions challenging the validity of the order passed by the Secretary (Appeals). It is further stated in the said Affidavit that there was a breach of the condition of the order of grant and the original allottees committed breach of not obtaining prior permission from the Collector as provided by the terms and conditions of the grant. It is further submitted that the Secretary (Appeals) has recorded a finding that none of the contentions of the petitioners could be accepted as the original grantees have transferred the possession and interest in favour of the Power of Attorney and that there was breach of terms and conditions of the order of grant by executing Banakhat and making payment to the original grantee and parting with possession by them. It was further stated that the Secretary (Appeals) has relied upon the order passed by the City Civil Court, Ahmedabad whereby the notice of motion taken out by the petitioner was rejected and appeal from order No. 176/2000 filed against the said order of the City Civil Court was also dismissed by this Court vide order dtd. 09.05.2000. It was further stated that the Collector has taken the decision on the application seeking permission and there was no reason to interfere with the order passed by the Collector. It was further stated that Tahirbhai Rasulbhai, the original grantee has expired and his son, Shri Sabir Hussein has not executed any Power of Attorney in favour of the petitioner. It was further stated that Shri Ajitbhai Bholabhai has not executed any Power of Attorney in favour of the petitioner. Shri Rameshchandra Jaisinhbhai has also expired and there was no Power of Attorney produced by the petitioner which was said to have been executed by his representative. With regard to issuance of notice under Section 61 of the Bombay Land Revenue Code, it was stated that the land is vested in the Govt. and hence, the authority was justified in issuing the said notice for removal of unauthorised encroachment on the said land.
11. The respondent No. 5 Shri Safi Mohammed Rehmatkhan Pathan has filed another Affidavit-in-reply on 02.07.2001 bringing on record certain new facts. In this additional affidavit, it was stated that the petitioner was not doing the business of vegetables and fruits. But, as a matter of fact, the petitioner is a Builder and is doing the construction business. It was further stated that the petitioner started taking possession of the lands of poor persons illegally by threatening them and thereafter he has constructed a market known as “Ekta Alu Bhandar” which is a market admeasuring about 100 Sq. Yards. It was further stated that the petitioner was also having his own market in front of the disputed land on the other side of the road. The petitioner has also constructed on the road and encroached upon the said road and as a result of such illegal construction, the 40 feet wide road was reduced to only 25 feet wide road. It was further stated that the present petitioner was Anti-social element and number of complaints have been filed against him. It is further stated that the City Survey Superintendent issued notice dtd. 08.12.1999 for illegal encroachment and illegal construction and thereafter, on 18.12.1999, the City Survey Superintendent has filed complaint against the petitioner before Dariyapur Police Station being I – C.R. No. 111/1999. The petitioner thereafter moved an application before the Collector for regularising the sale. The petitioner has, however, not disclosed the fact that before applying to the Collector, the petitioner has filed a Civil Suit No. 6647/1999 before the City Civil Court, Ahmedabad and in the notice of motion, a prayer was made to the effect that no steps pursuant to the notices be taken against the petitioner. The learned City Civil Judge heard the application for interim injunction below Exh.6 and vide his order dtd. 28.03.2000, rejected the said application, after observing that the petitioner has encroached upon the land and he has committed the breach of conditions. As stated earlier, an appeal from order filed against this order was also dismissed by this Court on 09.05.2000.
12. The present petitioner has filed Affidavit-in-Rejoinder in S.C.A. No. 3754/2001 and denied the contentions raised by the respondent No. 5 in his two Affidavits-in-Reply. It is stated in the said Affidavit-in-Rejoinder that there was no execution of sale deed and transfer of title. The petitioner had entered into Banakhat without possession, with the five allottees in the year 1994 and that the Banakhat with possession in the year 1995. It is further stated that Late Shri Tahirbhai Rasulbhai’s Son Sabbir Hussain Tahirbhai had given the Power of Attorney in respect of his shop to the petitioner and the same is already annexed along with the main petition. It is further stated that the petitioner has taken possession from Hajibhai Salimbhai who is the Power of Attorney holder of Shri Ajitbhai Bholabhai and not from Abdul Karim Haji Ibrahim Memon as alleged by the respondent No. 5. It was further stated that after the death of Rameshchandra Jaisinhbhai, his legal heirs have given Power of Attorney to the petitioner on 25.11.1994 in respect of land bearing Survey No. 1751/3/6. The petitioner has also denied that he has made any encroachment on the road. It is further stated that after dismissal of his appeal from order by this Court, the petitioner has handed over the land bearing Survey No. 1751/3/5 to the City Survey Superintendent. It is further stated that several instances were quoted by him before the Collector regarding the Collector’s granting of permission to transfer the land and yet the sale was not taken into consideration by the Special Secretary (Appeals). It was, therefore, stated that the allegations made by the respondent No. 5 in his two Affidavits would not carry any weightage and the relief prayed for by the petitioner should be granted by this Court.
13. An Affidavit-in-Reply was also filed by the Deputy Collector, Ahmedabd wherein it was stated that the land in question was of new tenure land and such land cannot be transferred, sold or leased out without prior permission of the competent authority i.e. Collector. The petitioner and the original allottees have committed breach of the terms. Moreover, the petitioner has illegally made construction on the land without getting permission of the Collector and hence, there is no question of granting any relief to the petitioner in the present petition.
14. This Court (Coram :- Ms. R.M. DOSHIT, J.) on 18.02.2002 passed an order, after hearing the parties, directing the petitioner to file five separate petitions in respect to the subject matter of the S.C.A. No. 3754/2001 challenging the common judgment and order of the State Government dtd. 27.04.2001. The petitioner has also undertaken to withdraw S.C.A. No. 3754/2001 in the event of the fresh petitions being entertained by the Court. Pursuant to the aforesaid order passed by this Court, five separate petitions being S.C.A. No. 1312, 1339, 2978, 2979, 3305 of 2003 were filed before this Court on or around 20.11.2002 and they were moved for hearing after removing the office objections on 22.07.2003 and with the consent of the parties, the same were adjourned to 22.08.2003 and that is how the matters were listed before this Court on 22.08.2003.
15. Mr. J.M. Patel with Mr. M.B. Parikh, learned advocates appearing on behalf of the petitioners in all these petitions, have reiterated, more or less, the same grounds which were raised in S.C.A. No. 3754/2001 as well as the Affidavit-in-Rejoinder filed therein. Mr. J.M. Patel has strongly submitted that the State Government and the Collector have failed to take into consideration the application dtd. 27.12.1999 filed by the petitioner for getting permission for construction. The said application was pending when the orders were passed and the contention of the authorities were also drawn by the petitioners at the time of hearing stating that the said application is pending. Despite this submission, both the authorities have failed to take into consideration the aforesaid submission of the petitioner and totally ignored the application dtd. 27.12.1999 filed by the petitioners for the purpose of seeking permission to transfer the land on payment of premium to the Government. Mr. Patel has, therefore, submitted that it is the duty of the authorities to look into the application filed by the petitioner and to decide the said application in accordance with law. Mr. Patel has further submitted that if the applications filed by the petitioner for regularisation could have been entertained by the Collector, there was no question of initiating eviction proceedings against the petitioners. He has further submitted that the Collector, Ahmedabad himself has granted permission to number of persons as stated in the petition for transferring the land by charging the premium while granting such permission, the Collector has not insisted of his previous approval to transfer the property and he has, on the contrary, after the transfer, delete the condition of new tenure and in some other cases, he has granted permission to transfer the property by charging premium. He has, therefore, submitted that there is no reason or justification for the respondent authorities not to consider the said request in favour of the petitioners. The cases referred to in the petitions and the case of the petitioners are similar in nature and, therefore, the respondent authorities ought to have consider the application and ought to have granted the permission to transfer the property by charging premium and by not granting permission, the respondent authorities have committed breach of Provisions of Article 14 of the Constitution of India. Mr. Patel has further submitted that neither the petitioners nor the Power of Attorney holder have made any encroachment as alleged by the respondent No. 5 who is a busy body. As a matter of fact, the respondent No. 5 has no concern or interest in the property and his shop is situated far away from the shops of the petitioners and no encroachment as against by him was made by the petitioners. Mr. Patel has further submitted that the order of grant dtd. 21.04.1973 clearly contemplates that the land is transferrable or only subject to obtain permission of the Collector and paying up premium. The order does not contemplate any previous sanction or transfer. In view of the fact that the petitioner has already submitted an application and also paid the premium fixed by the Govt. and since the similarly situated persons have been granted permission to transfer the land, there was no reason or justification for not giving such permission to the petitioners.
16. Mr. M.C.Bhatt, learned advocate appearing for the respondent No. 5 on Caveat in S.C.A. No. 3754/01 as well as in all the subsequent five petitions has also reiterated his submissions made in two Affidavits-in-reply filed in S.C.A. No. 3754/01 and supported the orders passed by the respondent authorities. Learned A.G.P. appearing on behalf of respondents Nos. 1 to 4 in S.C.A. No. 3754/01 has also placed reliance on the Affidavit-in-reply filed in S.C.A. No. 3754/01.
17. After having heard learned advocates appearing on behalf of the respective parties in S.C.A. No. 3754/01 as well as after having heard learned advocates appearing for the petitioners and for the Caveator in the remaining five petitions and after having gone through the pleadings of the parties in all these petitions and after having perused the papers and documents filed along with the said petitions, I am of the view that the Collector as well as Special Secretary (Appeals) both are justified in passing their respective orders against the present petitioners. The order dtd. 21.04.1973 whereby the land was granted to the petitioner clearly reveals that the said grant was subject to certain conditions. Condition No. 2 states that without the permission of the Collector, no change in the use of the land can be made. Condition No. 3 states that without the permission of the Collector, the land cannot be transferred and even at the time of transfer of the land in consonance with the conditions laid down in the Govt. Resolution dtd. 17.10.1947, the premium amount will have to be paid to the Government. Condition No. 4 further states that before making any construction on the said land, the plan will have to be approved by the Municipal Corporation. The above conditions were violated by the original grantees and for that purpose, notice was issued by the City Survey Superintendent on 08.03.1999 wherein it was specifically stated that the land was transferred to some other persons and construction was made on the said land by these other persons. There was no evidence to the effect that before making any construction, plan was approved by the Municipal Corporation. The petitioners have given reply to the said notice on 22.04.1999 and immediately thereafter, an application was made to the District Collector on 27.12.1999 for seeking permission to transfer the land. It is an admitted position that the petitioners have made this application much after the land was transferred and that too after issuance of the notice by the City Survey Superintendent on 08.04.1999. Thus, it cannot be said that the petitioners on their own have filed the above application for seeking permission to transfer the land. Had these notices been not issued on the petitioners, the petitioners would not have come forward by way of the said applications. This shows the malicious act on the part of the petitioners not to observe the terms and conditions laid down in the order of grant. The comparable instances pointed out by the petitioners stand altogether on different footings as in most of those cases, the original allottees have come forward before the authorities and applied for permission and without issuance of any notices on them, such permissions were sought for. Here in the present case, the petitioners have applied for after more than six years and that too when the notices were issued on them by the City Survey Superintendent. The record further reveals that the land was transferred much earlier and there were several irregularities pointed out by the respondent No. 5. Evenif they are not considered to be true at their face value, they are certainly in realm of disputed questions of facts which cannot be gone into while exercising writ jurisdiction under Article 226/227 of the Constitution of India. The authorities have exercised their discretion on the basis of the facts which they found and arrived at a particular decision. This decision cannot be interfered with merely on the basis that in some other cases, permission was granted by the Collector. The main argument of the petitioner that the application for regularisation or for seeking permissions to transfer the land is pending and the petitioners are willing to pay the premium would not render much assistance to the petitioners. It can also not be accepted that despite the application being pending before the Collector, the land was forfeited and the order was passed vesting the said land in the Government. As a matter of fact, application was made to the Collector and the same Collector has passed the impugned order. In other words, the said application was taken into consideration by the Collector and since he was not persuaded, the impugned order was passed by him. Since this Court does not find any infirmity in the orders passed by the authorities below and since the Court restrains itself from entering into the disputed questions of facts and since the orders passed in the interim applications moved by the petitioners in the City Civil Court and appeal from order filed there against before this Court can have certainly some bearings on the present proceedings, this Court would not incline to interfere in the concurrent findings arrived at by the authorities below and hence, all these petitions are dismissed. Notice issued in S.C.A. No. 3754/01 is discharged. Interim relief, if any, granted earlier, shall stand vacated. There shall be no order as to costs.