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SCA/14878/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14878 of 2011
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LABHUBEN
JAYMALBHAI NADODA - Petitioner
Versus
STATE
OF GUJARAT THRO SECRETARY & 3 - Respondents
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Appearance :
MR
SATYEN B RAWAL for Petitioner:
MR. HK PATEL, LD. AGP for
Respondent: 1
None
for Respondents : 2 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 09/11/2011
ORAL
ORDER
Heard
learned advocate for the petitioner. The petitioner – Revision
Applicant in Revision Application No. 7 of 2003 before the
Respondent no.2 under the provisions of Section 211 of Bombay Land
Revenue Code has approached this Court under Article 226 of the
Constitution of India, challenging the order passed by Respondent
no.2 on 9/5/2011, rejecting the Revision Application for the reasons
stated there under.
Facts
in brief, as narrated by the petitioner in the memo of the petition
could be set out as under:
The
petitioner purchased parcel of agricultural land in village
Kholadiya, bearing survey no. 45, admeasuring 5 acres 35 gunthas by
executing sale deed on 15/4/1986 after due inquiry as to the
ownership of the vendor of the land in question. The vendor who
happened to be heirs of one Shri Babar Talshi Kalyan informed the
petitioner that they are all co-owners of the said parcel of the land
and assured the petitioner that there is no defect, charge or
encumbrance on the land, and it was informed to the petitioner that
in case of any such difficulty or defect they would be liable for the
same. Relying upon such assurance the petitioner purchased said land
as the petitioner was satisfied about legal ownership of the land
vesting in the heirs of Babar Talshi Kalyan. The land was required to
be improved upon and the petitioner put his sweat for improving
the land in question. The petitioner was unfortunate as the
proceedings were initiated by Dy. Collector in case No.2 of 2000 for
breach of condition in respect of land in question as the land was
‘Bhudhan Land” allotted to Babar Talshi Kalyan and as such it
was non-alienable in any manner. The petitioner had to take up
proceedings for justifying her possession in the land but ultimately
proceedings culminated against her and she had to prefer revision
application contending that as per the Government Resolution dated
16/3/1982 and especially Clause 4(1) of the said Resolution she had
a right to be in possession and her possession was required to be
regularized as it was ‘first mistake’ of ‘Khatedar’ which is required
to be condoned in light of the provision mentioned there under. The
revision authority after recording its reasons rejected the same.
Being aggrieved and dissatisfied by the order dated 9/5/2011 passed
by the revision authority the petition is preferred under Article 226
of the Constitution of India.
Learned
advocate for the petitioner contended that there exists no dispute
with regard to the fact that the land in question has not been
alienable in any manner nor was there any dispute being petitioner
merely a purchaser. However when the petitioner has heavily relied
upon condition no. 4(1) of resolution dated 16/3/1982 it was a duty
cast upon the revision authority to deal with the said contention in
an appropriate manner. Non-dealing with the said contention has
rendered the order illegal and therefore same is required to be
quashed and set aside.
Learned
advocate for the petitioner submitted that irrespective of the
petitioner’s right flowing from resolution dated 16/3/1982 the
petitioner has preferred representation to concerned Collector for
re-grant of land and the same has not been decided. In case if the
Court is not inclined to entertain this petition, then, atleast
there could be a direction to the concerned Collector for deciding
the representation in accordance with law.
Learned
advocate for the petitioner has heavily relied upon the averments
and narration mentioned on page-24 in the compilation and contended
that this contentions are not being dealt with by respondent
revision authority and therefore the impugned order is vitiated.
This
Court is unable to accept the submissions of learned advocate for
the petitioner for the following reasons:
a) This
Court is of the considered view that though this petition is styled
to have been filed under Article 226 of the Constitution of India,
essentially it is a petition under Article 227 of the Constitution of
India only, as there exists no averment which could have been relied
upon by the petitioner to indicate that the petition is filed under
Article 226 of the Constitution of India. However, assuming for the
sake of examining for holding that the petition is maintainable under
Article 226 of the Constitution of India, then also the petitioner’s
challenge to the order and the prayers are required to be examined,
which would go to show that the petitioner could not make out a case
for interference even under Article 226 of the Constitution of India.
The petitioner did not establish any right much less any fundamental
right to hold on the land in question as the petitioner purchased the
land contrary to the policy of the State for granting the land to
those who are qualified to have the land for cultivating it
personally. If such a land is being alienated and the petitioner has
purchased the land, then, assuming for the examination that it is
purchased bonafide, then also, that bonafide purchase should not
inure any right in the petitioner so as to continue the possession of
the land as the purchase itself was per se
illegal and contrary to the prevision of law. Any purchase which is
illegal and contrary to provisions of law could not have been made
basis for seeking any relief much less relief under Article 226 of
the Constitution of India, that being an extra ordinary jurisdiction,
same would not be available to a person who is basing their claim on
any illegality. Thus even if the petition is being considered from
the angle of Article 226 of the Constitution
of India, then also the petitioner has not made out any case for
interference.
b) Now
let us examine the petition from the point of view of Article 227 of
the Constitution of India also. The Court needs to be mindful of the
fact that Article 227 of the Constitution has inherent limitations of
examining the order impugned. Non-dealing of some of he contentions
with regard to ‘first mistake’ on the part of the occupant based upon
G.R. Dated 16/3/1982 is of no avail to the petitioner, as simple
reading of the GR would go to show that that said provision inures in
favour of the original grantee and not to the one who has goaded or
persuaded to grant in alienating the land by committing condition of
allotment. The fact that the petitioner is a purchaser and not an
original allotee and therefore not a ‘Khatedar’, is not disputed.
Therefore, in my view the petitioner did not have any right to invoke
the provision of resolution dated 16/3/1982. The petitioner’s
advocate has relied upon resolution dated 16/3/1982 and the provision
of para-4 (1) to indicate that this alienation was first alienation
and therefore she had a right to hold on the land. This contention
is wholly misconceived and deserves rejection in view of the fact
that petitioner could not have any claim to be a person eligible
under that provision as petitioner was not an allotee. The petitioner
was rather a person who had goaded the allotee in committing the
breach of condition of allotment.
7.
Therefore, the petition being bereft of merits deserves rejection
and is accordingly rejected. However, there shall be no order as to
costs.
[
S.R. BRAHMBHATT, J ]
/vgn
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