DILAVARSINH KHODUBHA JADEJA v. STATE — 1994 DIGILAW 142 (GUJ)

DIVECHA, J. ( 1 ) BY means of this petition under Arts. 226 and 227 of the Constitution of India, the petitioner has questioned the correctness of the order passed by and on behalf of the State Government (respon- no. 1 herein) on 23/08/1984 rejecting his application for exemption under Sec. 20 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act for brief) with respect to Survey Nos. 17 and 59 situated at nana Mauva within the urban agglomeration of Rajkot (the disputed lands for convenience) and also of the order passed by the Competent Authority at Rajkot on 27/02/1986 in U. L. C. Case No. 1731 as affirmed in appeal by the order passed by the Urban Land Tribunal at Ahmedabad (Respondent No. 3 herein) on 28/12/1988 in Appeal No. Rajkot 49 of 1986. By his impugned order, the Competent Authority declared the holding of the petitioner to be in excess of the ceiling limit by 54,886. 44 sq. metres. ( 2 ) THE facts giving rise to this petition move in a narrow compass. The petitioner was holding certain properties within the urban agglomeration of Rajkot as on 17/02/1976. He filled in the prescribed form under Sec. 6 (1) of the Act with respect to his aforesaid holding. It appears that his holding included the disputed lands. The petitioner appears to have made an application under Sec. 20 (1) of the Act for grant of exemption with respect to the disputed lands. By the order passed by and on behalf of respondent No. 1 on 5/12/1983, his application came to be rejected. Its copy is at Annexure a to this petition. That order was challenged before this Court by means of Special Civil Application No. 1145 of 1984. This Court accepted that petition and set aside the order at Annexure a to this petition and remanded the matter to respondent no. 1 for its fresh decision according to law with respect to the petitioners claim for exemption under Sec. 20 (1) of the Act qua the disputed lands. After giving an opportunity of hearing to the petitioner through his advocate, by the order passed by and on behalf of respondent No. 1 on 23/08/1984, the petitioners application for exemption under Sec. 20 (1) of the Act with respect to the disputed lands came to be rejected. Its copy is at Annexure b to this petition. After giving an opportunity of hearing to the petitioner through his advocate, by the order passed by and on behalf of respondent No. 1 on 23/08/1984, the petitioners application for exemption under Sec. 20 (1) of the Act with respect to the disputed lands came to be rejected. Its copy is at Annexure b to this petition. The petitioner has questioned its correctness in this petition under Arts. 226 and 227 of the Constitution of India. ( 3 ) AFTER the order at Annexure b came to be passed, the proceeding arising from the prescribed form filled in by the petitioner under Sec. 6 (1) of the Act was taken up for its disposal according to law. Apropos, a draft statement came to be prepared and served to the petitioner in accordance with Sec. 8 of the Act. He filed his objections thereto. After hearing the petitioner, by the order passed on 27/02/1986 in the aforesaid proceeding, the Competent Authority at Rajkot declared the petitioners holding to be in excess of the ceiling limit by 54,886. 44 square metres. Its copy is at Annexure c to this petition. The aggrieved petitioner carried the matter in appeal before respondent No. 3 under Sec. 33 of the Act. It came to be registered as appeal No. Rajkot-49 of 1986. By the order passed on 28/12/1988 in the aforesaid appeal, respondent no. 3 dismissed it. Its copy is at Annexure d to this petition. The aggrieved petitioner has thereupon moved this Court by means of this petition under Arts. 226 and 227 of the Constitution of India also for challenging the order at Annexure c to this petition as affirmed in appeal by the appellate order at Annexure d to this petition. ( 4 ) IT is necessary to take note of certain further developments after the appellate order at Annexure d came to be passed. Pursuant thereto, the notification under Sec. 10 (3) of the Act came to be issued on 1 8/01/1989 and came to be published in the Gujarat Government Gazette on 2/03/1989. Pursuant thereto, the required notice under Sec. 10 (5) of the Act came to be issued on 21/03/1989 and it is reported to have been served to the petitioner on 1/04/1989. Pursuant thereto, the required notice under Sec. 10 (5) of the Act came to be issued on 21/03/1989 and it is reported to have been served to the petitioner on 1/04/1989. It is reported that possession of the land covered by the aforesaid notification under Sec. 10 (3) of the Act and the notice under Sec. 10 (5) thereof was taken on 27/06/1989. It is also reported that the award with respect thereto under Sec. 11 of the Act came to be passed on 21/08/1989. It is not in dispute that an area of 10,000 square metres out of survey No. 59 situated at Nana Mauva came to be allotted in favour of respondent no. 4 Society by an order passed on 5/11/1990. Shri Nanavati, learned Advocate, for respondent No. 4, states that pursuant thereto respondent No. 4 Society has paid to the Government the specified amount of Rs. 25,00,000. 00 within the time-limit stipulated therein. ( 5 ) SHRI Jadeja for the petitioner has submitted that the disputed lands were used for agricultural purposes on 17/02/1976 and there was in existence no master plan answering its definition under Sec. 2 (b) of the Act, and as such they would fall outside the purview of vacant land" as defined in Sec. 2 (q) of the Act in view of the binding ruling of the Supreme Court in the case of Atia Mohammadi Begum v. State of U. P. , reported in AIR 1993 SC 2465 and the unreported ruling of this Court in Special Civil application No. 4295 of 1987 decided on 4/02/1994. As against this, Shri Dave, Shri Nanavati and Shri lakhani for the respective respondents have urged that, in view of occurrence of events after the impugned order at Annexure d to this petition came to be passed, an irreversible situation can be said to have arisen and no relief to the petitioner deserves to be granted in view of the fact that the petitioner has not chosen to challenge those actions in this petition. They have further urged that the aforesaid facts occurring after the appellate order at Annexure d to this petition have not been disclosed by the petitioner in this petition though he has been very much in know of them. They have further urged that the aforesaid facts occurring after the appellate order at Annexure d to this petition have not been disclosed by the petitioner in this petition though he has been very much in know of them. It has been urged that this petition should be rejected on the ground of suppression of the aforesaid material and vital facts from this court. Shri Lakhani for respondents No. 5 to 29 has urged that the concerned respondents in their Civil Application No. 879 of 1993 in this petition have categorically averred that the petitioner has agreed to sell the disputed lands to one Laljibhai Patel and this conduct of the petitioner should disentitle him from claiming any relief from this Court in this petition under Arts. 226 and 227 of the Constitution of India. By way of rejoinder, Shri Jadeja, learned Advocate, for the petitioner has urged that it would not be desirable on the part of this Court to throw out this petition on the ground that the petitioner has suppressed certain material or vital facts or that the petitioner has become disentitled from claiming any relief from this Court after keeping this petition pending before this court for nearly four years. Besides, runs the submission of Shri Jadeja for the petitioner, the petitioner is an illiterate person residing in a rural area and would not be in know of intricacies of law inasmuch as he would not know that he has to disclose all such facts in this petition or has to challenge the actions having taken place after the appellate order at annexure d to this petition came to be passed. Shri Jadeja for the petitioner has further urged that no such action pursuant to the appellate order at Annexure d to this petition could have been passed when this petition was pending before this Court. In the alternative, Shri Jadeja for the petitioner has submitted that the hot-haste in which the actions pursuant to the appellate order at Annexure d to this petition were taken is in itself a tale-telling circumstance; it is eloquent enough to show the conduct of the concerned respondents. In the alternative, Shri Jadeja for the petitioner has submitted that the hot-haste in which the actions pursuant to the appellate order at Annexure d to this petition were taken is in itself a tale-telling circumstance; it is eloquent enough to show the conduct of the concerned respondents. ( 6 ) I think it is not necessary to enter into the merits of the case at this stage for the simple reason that an irreversible situation has arisen on account of certain development of unchallenged events occurring after the appellate order at Annexure d came to be passed. Even at the cost of repetition, it may be reiterated that the Notification under Sec. 10 (3) of the Act came to be issued on 18/01/1989 and published in the Gujarat Government Gazette on 2/03/1989. The required notice under Sec. 10 (5) of the Act came to be issued on 21/03/1989 and served to the petitioner on 1/04/1989. It is true that the Notification under Sec. 10 (3) of the Act has been issued practically within three weeks from the date of the appellate order at Annexure d to this petition. In absence of attribution of any motive to the author of the aforesaid notification or the authority at whose behest it came to be issued in the memo of petition, it is not necessary for this Court to level any criticism with respect to the hurried manner in which it came to be issued. I might agree with Shri Jadeja fully in this submission to the effect that the aforesaid Notification under Sec. 10 (3) might not have come to the notice of the petitioner as it was issued in a hot-haste. Shri D. C. Dave for respondents Nos. 1, 2 and 3 has stated at the Bar on instructions that the notice under Sec. 10 (5) of the Act came to be issued on 21/03/1989 and served to the petitioner on 1/04/1989. This ought to have put the petitioner on his guard. He ought to have immediately approached this Court for challenging the order at Annexure c to this petition as affirmed in appeal by the appellate order at Annexure d to this petition and the Notification under Sec. 10 (3) of the Act and the notice under Sec. 10 (5) thereof. The petitioner appears to have remained indolent in that regard. Shri Dave for respondents Nos. The petitioner appears to have remained indolent in that regard. Shri Dave for respondents Nos. 1, 2 and 3 states at the Bar on instructions that possession of the lands covered by the Notification and the notice under Secs. 10 (3) and 10 (5) of the Act respectively was taken on 27/06/1989. Shri Jadeja for the petitioner has, however, disputed this fact. According to Shri Jadeja, the petitioner is still in possession of the subject-matter of this petition. Be that as it may, it transpires from the statement made at the Bar by shri Dave for respondents Nos. 1 to 3 that possession of the lands covered by the Notification under Sec. 10 (3) of the Act was attempted to be taken on 27/06/1989. That also ought to have aroused the petitioner for immediately approaching this Court for challenging the orders under challenge in this petition and also the subsequent actions pursuant thereto. It appears that the petitioner again remained indolent. Shri Dave for respondents Nos. 1, 2 and 3 states at the Bar on instructions that the award under Sec. 11 of the Act came to be passed on 21/08/1989 after issuing the necessary notice in that regard on 1st August, 1989 which was received by the petitioner on 3/08/1989 and the notice for payment of the award amount was issued on 6/07/1990. This petition has admittedly been filed on 26/07/1989 only after, as stated by Shri Dave for respondents Nos. 1, 2 and 3, possession of the lands covered by the notification under Sec. 10 (3) of the Act was taken over from the petitioner. ( 7 ) AS pointed out by Shri Nanavati for respondent No. 4, some 10,000 sq. mts. of and out of the disputed land has been allotted to respondent no. 4 by an order passed on 5/11/1990 and respondent No. 4-Society has paid to the Government a specified amount of Rs. 25 lakhs within the time-limit stipulated therein. Shri Jadeja for the petitioner would not be in a position to plead any ignorance in that regard in view of the fact that respondent No. 4-Society had filed a caveat in the present proceeding. 25 lakhs within the time-limit stipulated therein. Shri Jadeja for the petitioner would not be in a position to plead any ignorance in that regard in view of the fact that respondent No. 4-Society had filed a caveat in the present proceeding. That ought to have put the petitioner and/or his learned advocate on his guard and the petitioner or his learned Advocate ought to have made enquiries as to why respondent No. 4-Society was required to file its caveat in the present proceeding. ( 8 ) IN fact, as pointed out hereinabove, allotment of 10,000 sq. mts. area from the disputed land has come to be made in favour of respondent No. 4-Society way back in 1990. ( 9 ) ALL the aforesaid actions have not come to be challenged in this petition. An irreversible situation qua the subject-matter of this petition can be said to have arisen in absence of any challenge to the aforesaid actions that have come to be taken after the appellate order at Annexure d to this petition came to be passed. The hand of the clock cannot now be put back to the original position in absence of such challenges as indicated hereinabove. The petitioner has, for reasons best known to him, remained indolent all throughout. No attempt is made to incorporate, by seeking amendment in the memo of petition, the challenge to the aforesaid actions that have been taken after the appellate order at Annexure D to this petition came to be passed. ( 10 ) IT cannot be gainsaid that the extraordinary jurisdiction under Arts. 226 and 227 of the Constitution of India is discretionary in nature. The principles in that regard are too well-settled to be supported by any binding or persuasive ruling. If one is needed, a reference may be made to the binding ruling of the Supreme Court in the case of A. M. Allison and Am. v. B. L. Sen and Ors. , reported in AIR 1957 SC 227 . The principles governing exercise of discretion would be similar to, if not identical with, those governing exercise of discretion for grant of equitable reliefs. It is a settled principle of the equity jurisdiction that equity helps the vigilant and never the indolent. The petitioner has to thank himself for having remained indolent all throughout and having allowed the irreversible situation to arise in this case. It is a settled principle of the equity jurisdiction that equity helps the vigilant and never the indolent. The petitioner has to thank himself for having remained indolent all throughout and having allowed the irreversible situation to arise in this case. ( 11 ) BESIDES, the petitioner has also suppressed all the aforesaid facts from this Court in this petition. As pointed out hereinabove, this petition has been filed on 26/07/1989. Prior thereto, the Notification under Sec. 10 (3) came to be issued and published and the notice under Sec. 10 (5) came to be issued and possession of the lands covered thereby also came to be taken. It appears that the petitioner was well aware of this development after the appellate order at Annexure d to this petition came to be passed, and yet he has not chosen to disclose the aforesaid facts in this petition. ( 12 ) IT transpires from the record that this petition was moved on 13/06/1991 for urgent circulation for 14/06/1991. Prior thereto, the award under Sec. 11 of the Act came to be passed on 21/08/1989. Even the notice for payment of compensation awarded thereunder was served to the petitioner on 6/07/1990 as stated by Shri Dave for respondents Nos. 1, 2 and 3 at the Bar. Even an area of 10,000 sq. mts. in Survey No. 59 covered by the Notification under Sec. 10 (3) of the act came to be allotted in favour of respondent No. 4 herein on 5/11/1990. This occurred obviously prior to circulating this petition for urgent orders on 13/06/1991. And yet the petitioner has hot chosen suitably to amend this petition and to disclose the aforesaid facts before this Court. It cannot be gainsaid that the aforesaid facts were material and vital. Disclosure thereof might have enabled this Court to refuse to exercise discretion in favour of the petitioner at the stage of its preliminary hearing in view of the fact that an irreversible situation had arisen by that time. Even thereafter, this petition has not suitably been amended with the leave of this Court. Such non-disclosure or suppression of the aforesaid vital and material facts would certainly disentitle the petitioner from claiming any relief from this Court under arts. 226 and 227 of the Constitution of India. Even thereafter, this petition has not suitably been amended with the leave of this Court. Such non-disclosure or suppression of the aforesaid vital and material facts would certainly disentitle the petitioner from claiming any relief from this Court under arts. 226 and 227 of the Constitution of India. ( 13 ) I am fortified in my view by the binding Division Bench ruling of this Court in the case of N. D. Patel and Company v. Manubhai karsan-bhai Parmar and Anr. , reported in [1984 (1)] XXV (1) GLR 386. In that case, it was found that the petitioner was guilty of deliberate suppression of important and material facts. This Court was disinclined to interfere with the award under challenge in the petition under Art. 227 of the Constitution of India on the ground of suppression of material facts alone. The aforesaid binding Division Bench ruling of this court was followed by the learned single Judge of this Court in his ruling in the case of Vijay J. Gadhvi v. State of Gujarat and Ors. , reported in [1988 (2)] XXIX (2) GLR 902. ( 14 ) AS rightly submitted by Shri Lakhani for respondents Nos. 5 to 29, the petitioner has agreed to sell the disputed lands in favour of one Laljibhai Patel. The specific averments in this regard have been made in Civil Application No. 379 of 1993 in this petition. It has not come to be controverted in any manner by or on behalf of the present petitioner. It thus becomes clear that the petitioner has not approached this Court with clean hands. This conduct on the part of the petitioner would disentitle him from claiming any relief from this Court in this petition under Arts. 226 and 227 of the Constitution of India. ( 15 ) IN this connection, a reference deserves to be made to the binding ruling of the Supreme Court in the case of Om Prakash Shukia v. Akhilesh Kumar Shikia and Ors. , reported in AIR 1986 SC 1048. In that case, the petition under Art. 226 of the Constitution of India was moved for challenging the validity of the competitive examination as not held according to law. It was found that the petition was filed on realisation that he would not succeed therein. , reported in AIR 1986 SC 1048. In that case, the petition under Art. 226 of the Constitution of India was moved for challenging the validity of the competitive examination as not held according to law. It was found that the petition was filed on realisation that he would not succeed therein. In that context, the Apex court has held that the relief claimed in the petition ought not to have been granted to the petitioner. ( 16 ) IT thus becomes clear that the conduct of the petitioner would be a relevant factor in deciding whether or not the petitioner would be entitled to claim any discretionary relief from this Court under Art. 226 or 227 of the Constitution of India. By analogy, the aforesaid ruling of the Supreme Court in the case of Om Prakash Shukia (supra) would be applicable in the instant case. As pointed out hereinabove, the conduct of the petitio`ner in the present case is eloquent enough to disentitle him from claiming any relief from this Court in this petition ( 17 ) IN this connection a reference deserves to be made to the Division bench ruling of the Bombay High Court in the case of N. M. Nayak v. Chhotalal Haruam and Ors. , reported in AIR 1968 Bom, 51, in that case, the Bombay High Court refused to grant relief in favour of the petitioner whose conduct displayed that he approached the Court with unclean hands. The relevant observations in that regard are in paragraphs 19 and 20 of the reported ruling at page 54. They read : (19) From the tenor of the said agreements, it is clear that the object of the petitioner was to circumvent the provisions of the Rent Act and to make large profits by allowing the suit shop to be used and occupied by others. The rent of the suit shop was Rs. 90 per month and the petitioner was realising Rs. 250 per month from the said Bhangera and Rs. 425 from the said Society. In our opinion, these agreements are nothing but camouflage and were resorted to by the petitioner to make unjustifiable gains. The rent of the suit shop was Rs. 90 per month and the petitioner was realising Rs. 250 per month from the said Bhangera and Rs. 425 from the said Society. In our opinion, these agreements are nothing but camouflage and were resorted to by the petitioner to make unjustifiable gains. (20) The above conduct of the petitioner sufficiently indicates that the petitioner has not approached the Court with clean hands and he has, therefore, disentitled himself from invoking the jurisdiction of this Court under Art. 227 of the Constition and we are not prepared to assist the petitioner by exercising the discretion vested in us. We also refuse to exercise our powers under Art. 227, as there is no possibility of any grave injustice being caused to the petitioner. " i am in respectful agreement with the principle of law enunciated by the Bombay high Court in its aforesaid Division Bench ruling. It is on all fours applicable in the present case. The aforesaid conduct of the petitioner would show that he has come to this Court with unclean hands. By his such conduct, he has become disentitled from claiming any relief from this Court under Arts. 226 and 227 of the Constitution of India. ( 18 ) LN view of my aforesaid discussion, I do not think it necessary to examine the merits of the impugned order at Annexure C to this petition as affirmed in appeal by the appellate order at Annxure D to this petition. The said order might not be according to law. However, in view of my aforesaid discussion, the petitioner deservas no relief from this Court in this petition. ( 19 ) SO far as the order at Annexure b to this petition is concerned, it came to be passed as early as in 1984 and it is sought to be challenged 5 years thereafter in 1989. The petitioner has not chosen to explain the delay of 5 years in that regard. The order at Annexure b to this petition need not be interfered with at this stage in view of delay and laches on the part of the petitioner in approaching this Court in challenging it. ( 20 ) IN the result, this petition fails. It is hereby rejected. Rule is discharged with no order as to casts. The ad-interim relief stands vacated. . ( 20 ) IN the result, this petition fails. It is hereby rejected. Rule is discharged with no order as to casts. The ad-interim relief stands vacated. . ( 21 ) AT the oral request of Shri Jadeja for the petitioner, the operation of the order regarding vacating the interim relief is stayed for a period of four weeks from today to enable the aggrieved petitioner to challenge this judgment of mine by means of appropriate proceedings before the appropriate forum on condition that the petitioner shall maintain status quo with respect to the subject-matter of this petition except the area of land allotted to Respondent No. 4. Respondent no. 4 is also directed to maintain status quo for a period of four weeks from today subject to the order passed by the appropriate forum in the proceeding challenging this judgment of mine. .