{"id":252983,"date":"2010-10-18T00:00:00","date_gmt":"2010-10-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dharmesh-vs-state-on-18-october-2010"},"modified":"2019-01-16T19:41:22","modified_gmt":"2019-01-16T14:11:22","slug":"dharmesh-vs-state-on-18-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dharmesh-vs-state-on-18-october-2010","title":{"rendered":"Dharmesh vs State on 18 October, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dharmesh vs State on 18 October, 2010<\/div>\n
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Kureshi,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nLPA\/909\/2010\t 9\/ 9\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nLETTERS\nPATENT APPEAL No. 909 of 2010\n \n\nIn\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 3744 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n \nHONOURABLE\nMR.JUSTICE AKIL KURESHI\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nDHARMESH\nCHANDULAL PUROHIT - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT THROUGH SECRETARY & 9 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nBS PATEL WITH MR ARPIT P PATEL\nfor\nAppellant(s) : 1, \nMR UA TRIVEDI, AGP for Respondent(s) : 1 - 4. \nMR\nJR NANAVATI, WITH SUNIL B PARIKH for Respondent(s) : 5 -\n10. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tTHE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:  18\/10\/2010 \n\n \n\n \n \nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE AKIL KURESHI)<\/p>\n
The
\n\tappeal is directed against order dated 29.3.2010 passed by Learned
\n\tSingle Judge in Special Civil Application No.3744\/2010 by which the
\n\tpetition of the present appellant came to be dismissed. This case
\n\thas a chequered history.\n<\/p>\n
Briefly
\n\tstated facts are as follows :\n<\/p>\n
2.1\tOn
\n\tor around 11.8.1976 one M\/s. Shakti Brick Works, a partnership firm
\n\tfiled form under Section 6(1)<\/a> of the Urban Land (Ceiling and
\n\tRegulation) Act<\/a> ( the ULC Act<\/a>  for short) disclosing its land
\n\tholding bearing survey no.154-A admeasuring 2 acres 10 gunthas and
\n\t43 sq. mtrs and survey no.154-B admeasuring 3 gunthas and 4 sq. mtrs
\n\tboth of village Naroda, Ahmedabad(hereinafter referred to as  the
\n\tsaid land ). ULC authorities adjudicated on the question of excess
\n\tland and issued notification under Section 10(1)<\/a> of the ULC Act with
\n\trespect to the lands found excess of the ceiling limit. Notification
\n\tunder Section 10(3)<\/a> of the ULC Act was issued on 29.1.1997.
\n\tNotification under Section 10(5)<\/a> of the ULC Act was issued on
\n\t5.8.1997. The competent authority took possession of the land on
\n\t1.12.1997 drawing panchnama.\n<\/p>\n
2.2\tOn
\n\t2.4.1998 City Mamlatdar, Ahmedabad issued a notice purportedly under
\n\tSection 61 of the Bombay land Revenue Code to the original
\n\tpetitioner (i.e. present appellant) Dharmesh Chandulal Purohit
\n\tstating that the said land is of the ownership of the Government.
\n\t\tTalati, Naroda in his statement dated 20.11.1998 has sated that on
\n\tthe said land petitioner has unauthorisedly constructed five rooms
\n\tin 66 sq. mtrs. of land and thereby encroached on the Government
\n\tland. He was therefore called upon to show cause why steps should
\n\tnot be taken under Section 61 of the Bombay Land Revenue Code to
\n\tevict his occupation and to recover fine for such encroachment.\n<\/p>\n
2.3\tIn
\n\tresponse to the notice, petitioner filed reply on 17.4.1998
\n\tcontending that he is in possession of the said property since year
\n\t1984. He had occupied the land as partner for which he however, does
\n\tnot have any documents presently.  If the land is Government land,
\n\tit may be allotted to him permanently and his encroachment may
\n\tkindly not be removed.\n<\/p>\n
2.4
\n\t\tOn 6.5.1998, the City Mamlatdar however, passed an order directing
\n\tremoval of the encroachment of the petitioner. It was recorded that
\n\tout of 20407 sq. mtrs. of land of Survey No. 154-A which has become
\n\tthe land of the ownership of the Government, the petitioner Dharmesh
\n\tChandulal Purohit has occupied 66 sq. mtrs. of land by constructing
\n\tfive rooms. He has applied for grant of land on permanent basis on
\n\tpayment of fine. However, this request is not required to be
\n\taccepted. He therefore, ordered that encroachment be removed. Though
\n\tthe petitioner approached Additional Collector ULC, challenging the
\n\torder of Mamlatdar and also prayed for regularisation of his
\n\tpossession, admittedly, such request was not accepted. In the
\n\tmeantime, proceedings under the ULC Act<\/a> continued.\n<\/p>\n
2.5\tEventually,
\n\tthree separate petitions came to be filed before this Court namely
\n\tSpecial Civil Application  No. 8670\/2001, Special Civil Application
\n\tNo.5963\/2002 and Special Civil Application  No.452\/2001.\n<\/p>\n
2.6\tSpecial
\n\tCivil Application No.8670\/2001 was filed on behalf of Shakti Brick
\n\tWorks, a partnership firm challenging the oder passed by the
\n\tauthorities under the ULC Act<\/a>. Special Civil Application
\n\tNo.5963\/2002  came to be filed by Dharmesh Chandulal Purohit i.e.
\n\tthe present appellant claiming to have right, title and interest
\n\tover the said land claiming to be a partner of the said partnership
\n\tfirm. Special Civil Application  No. 452\/2001 came to be filed by
\n\tpersons who were allotted the said land by the Government but who
\n\twere unable to get possession thereof on account of legal
\n\tproceedings.\n<\/p>\n
2.7\tAll
\n\tthese petitions came to be disposed of by Learned Single Judge  by a
\n\tcommon judgement dated 29.3.2007. Learned Judge was of the opinion
\n\tthat possession of the land was not taken by the Government in
\n\taccordance with law. No procedure as envisaged under the Act was
\n\tfollowed. Notification under Sections 10(1)<\/a>, 10(3)<\/a> and 10(5)<\/a> of the
\n\tAct as well as possession panchnama were not in accordance with law.
\n\tThere was thus no vesting of the land in Government nor can the
\n\tGovernment be stated to be in lawful possession thereof. On the
\n\tbasis of these findings, Learned Single Judge was pleased to allow
\n\tSpecial Civil Application  No.8670\/2001 filed on behalf of Shakti
\n\tBrick Works and set aside orders under the ULC Act<\/a>.\n<\/p>\n
\t\tWith
\n\trespect to Special Civil Application No.5963\/2002 filed by the
\n\tpresent appellant, it was observed that he is unable to point out
\n\thow he is the owner of the property in question. It was observed
\n\tthat he had not filled in form under Section 6<\/a> of the ULC Act.
\n\tBefore the competent authority, he had never remained present. No
\n\tpartnership deed was produced. He was unable to establish his right
\n\tover the property. He was permitted to present copy of partnership
\n\tdeed before the High Court also. He never produced such document. It
\n\twas therefore, held that no material has been produced on record by
\n\thim regarding proof of ownership of the land. It was therefore,
\n\tconcluded that he had no right, title or interest over the land in
\n\tquestion. It was also noted that Civil Suits with respect to this
\n\tland filed by him have already been dismissed.\n<\/p>\n
\t\tWith
\n\trespect to Special Civil Application No.452\/2001, the allotees of
\n\tthe land by the Government, the Learned Single Judge observed that
\n\tsince order of the competent authority is set aside, all
\n\tconsequential orders also stand quashed. It would therefore, be for
\n\tthe State to decide which new land should be allotted to the said
\n\tpersons. Government was therefore directed to consider their case
\n\tafresh sympathetically and expeditiously.\n<\/p>\n
2.8\tThe
\n\tpresent petitioner challenged the order of the Learned Single Judge
\n\tin Letters Patent Appeal. However, such appeal also came to be
\n\tdismissed on 6.8.2007 wherein Division Bench also observed that he
\n\thas not produced any evidence supporting his claim that he was
\n\tpartner of the firm Shakti Brick Works. While dismissing the appeal,
\n\thowever, the Division Bench granted liberty to the petitioner to
\n\ttake appropriate steps under the law in the Civil Court, if he had
\n\tany right.\n<\/p>\n
2.9\t\tIt
\n\tis not in dispute that subsequently the petitioner also instituted
\n\tCivil Suit no. 86\/2008 wherein his injunction application came to be
\n\trejected. He preferred Appeal from Order against such rejection. It
\n\talso came to be dismissed by this Court by order dated 5.11.2009.
\n\tThough the petitioner claims to have filed SLP against the said
\n\torder, it is not in dispute that so far no interim order has been
\n\tpassed in his favour by the Apex Court.\n<\/p>\n
2.10\t\tSince
\n\tthe petitioner failed to establish his right, title or interest over
\n\tsuch property and failed to get any protection in his favour from
\n\tthe Civil Court, it appears that the Government initiated steps to
\n\tevict him from the property in question. By inter-department
\n\tcommunication dated 29.1.2010 produced at Annexure-A to the
\n\tpetition, Revenue Department on the representation on behalf of
\n\tShakti Brick Works, the partnership firm, conveyed to the Collector
\n\tthat the petitioner’s encroachment is required to be removed
\n\timmediately. It is this communication that the petitioner challenged
\n\tin the writ petition contending that the State had no power to
\n\tinvoke Section 61 of the Bombay Land Revenue Code since it was
\n\tquestion of private dispute and land did not belong to the State
\n\tGovernment. This petition came to be dismissed by the Learned Single
\n\tJudge as mentioned earlier by observing that :\n<\/p>\n
 4.
\n It is clear from the above narration of relevant facts that the
\npetitioner is yet to establish his right to possess the lands in
\nquestion either as an heir of the erstwhile partner of Shakti Brick
\nWorks or on any other basis.  His attempt at protecting his
\npossession by obtaining injunction orders from the Civil Court and
\nthis Court have already failed, and without being in possession he is
\nseeking to challenge the orders and communications between two
\nGovernment Officers.  Therefore the petition is dismissed only on the
\nground of the petitioner having no locus-standi and his civil
\nlitigation being pending before the appropriate Civil Court.\n<\/p>\n
5.\tIt
\n\tis clarified at the request of learned counsel Mr.B.S.Patel that the
\n\tCourt has not entered into merits, legality or otherwise of the
\n\timpugned orders or communications.\n<\/p>\n
Before
\n\tus, learned counsel for the appellant vehemently contended that the
\n\tState machinery was misused for private gain. The appellant was in
\n\tpossession of the land since year 1984. Once ULC proceedings came to
\n\tbe terminated by High Court quashing orders passed by the
\n\tauthorities below and declared possession of the Government illegal,
\n\tSection 61 of the Bombay Land Revenue Code could not have been
\n\tinvoked.\n<\/p>\n
3.1\tHe
\n\tfurther contended that previously for this very purpose
\n\tGhanshyambhai B. Rangvani acting on behalf of Shakti Brick Works,
\n\tthe partnership firm, had approached the High Court seeking
\n\tdirection to the Government to evict the petitioner from property in
\n\tquestion. However such request was turned down.\n<\/p>\n
On
\n\tthe other hand learned counsel Shri Nanavati appearing for
\n\trespondents no. 5 to 10 contended that the petitioner failed to
\n\testablish any right, title or interest over the property before any
\n\tCourt or forum. At no stage, he was in picture in the ULC
\n\tproceedings. Section 6(1)<\/a> form was filled on behalf of the
\n\tpartnership. Petitioner has not produced any document to show that
\n\the was partner thereof. His petition came to be dismissed by the
\n\tLearned Single Judge. Division Bench also relegated him to civil
\n\tproceedings. No stay has been granted in suit filed by him later on.
\n\tPreviously, his suits were also dismissed.\n<\/p>\n
Upon
\n\thearing the advocates and perusal of the documents, it becomes clear
\n\tthat at all stages the petitioner has failed to establish the
\n\tlegality of his possession. He has been adopting contradictory
\n\tstands. Though previously his stand was, that as a partner of the
\n\tsaid firm he had come upon possession, it appears that in subsequent
\n\tsuit filed by him his stand is that he has become owner of the
\n\tproperty by adverse possession. Be that as it may, we do not propose
\n\tto make any further observations with respect to these issues since
\n\tthe Civil Suit filed by the petitioner is still pending. Suffice it
\n\tto say that he has not been able to produce any material to protect
\n\this possession. Importantly, when the land was declared surplus
\n\tunder the ULC Act<\/a> and possession was purportedly taken over by the
\n\tGovernment, his occupation was held to be unauthorised. After
\n\tissuance of notice and receiving his response, Mamlatdar on 6.5.1998
\n\tordered his eviction. This order was never disturbed. Before the
\n\tMamlatdar in response to the show cause notice he had contended that
\n\tif his possession was found unauthorised, Government may regularise
\n\tthe same upon collection of fine. In view of such overwhelming facts
\n\tagainst the petitioner, we see no reason to allow Letters Patent
\n\tAppeal. Though we have our doubt whether after the Learned Single
\n\tJudge quashed the orders of ULC authorities, powers under Section 61
\n\tof the Bombay Land Revenue Code could have been invoked, in facts of
\n\tthe present case, now that possession has already been taken over,
\n\twe do not find it appropriate to grant any relief to the appellant
\n\tin exercise of discretionary writ jurisdiction, particularly, when
\n\the has failed before several Courts to prima facie establish his
\n\tright, title or interest over the property in question.\n<\/p>\n
In
\n\tview of this we also do not propose to opine on the stand of
\n\trespondents no. 5 to 10 that the present petitioner has no material
\n\tto show that he had entered into the land prior to 1997 (i.e. when
\n\tthe Government took possession of the land from the original owners)
\n\tand that all documents pertained to period post 1997 and that
\n\ttherefore, Government had to return the possession of the land to
\n\tthe partnership firm upon quashing the orders under the ULC Act<\/a>
\n\tafter removing such encroachments.\n<\/p>\n
In
\n\tthe result, appeal fails. Same is dismissed.\n<\/p>\n
(S.J.Mukhopadhaya,C.J.)<\/p>\n
(Akil
\nKureshi,J.)<\/p>\n
(raghu)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dharmesh vs State on 18 October, 2010 Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Kureshi,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-252983","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDharmesh vs State on 18 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dharmesh-vs-state-on-18-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dharmesh vs State on 18 October, 2010 - 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