RAMLAL MOTILAL SHETH v. STATE — 1996 DIGILAW 252 (GUJ)

B. C. PATEL, J. ( 1 ) ). THIS petition is filed under Art. 226 of the Constitution of india by the petitioner for quashing and setting aside the acquisition of lands bearing survey Nos. 90, 91, 92 and 93/1 of village Hansol (New Survey Nos. 4/1, 5, 6 and 7), now within limits of Ahmedabad City and further for directing the respondents not to dispossess the petitioner from the above lands and in the alternative for directing the respondents to pay compensation for the lands in question. ( 2 ) ). Tenor of the petition indicates that the lands in question were not acquired under the provisions of the Land Acquisition Act yet the respondent No. 1 authority is trying to interfere with the possession of the lands. It is averred in the petition that no compensation has been paid to the petitioner. It is averred that for the first time, the officers of the respondent No. 2 authority approached the petitioner and tried to take the possession of the lands belonging to the petitioner and therefore, the petitioner approached Ahmedabad City Civil Court, by filing a Civil Suit No. 3138 of 1991 praying for ad-interim relief which was granted and ultimately came to be vacated on 24-3-1992. It is also stated that Appeal from Order came to be filed and has been disposed of on 2-2-1996. ( 3 ) ). We questioned as to if an Appeal from Order is filed, how this petition is preferred by the petitioner ? We were told at the Bar that the Court has permitted the petitioner to move the appropriate Court for taking action in accordance with law and therefore, the present petition is preferred. Alongwith the petition, titles of Arbitration cases filed before the Assistant Judge has been produced with a view to indicate that if the petitioners lands have been acquired, there would be his case also. There are village forms No. VII/xii indicating the name of the petitioner and that the lands have been acquired. We thought it necessary to have some other material on record of the case. Mr. Oza at the relevant time stated that his client knows only that his lands though not acquired in accordance with the provisions of the Land Acquisition Act, he is sought to be dispossessed. He stated that the petitioner has made averments on oath and he should be protected. Mr. Oza at the relevant time stated that his client knows only that his lands though not acquired in accordance with the provisions of the Land Acquisition Act, he is sought to be dispossessed. He stated that the petitioner has made averments on oath and he should be protected. Mr. Oza was given an opportunity to place on record form No. 6 wherein the reasons for change of ownership are noted by the revenue authority, but he could not produce the same. Ultimately, by an order dated 23-4-1996, we called upon the Talati and the mamlatdar to remain present before the Court with form No. 6 in connection with lands which are alleged to have been transferred in the name of Civil Aerodromerespondent no. 2 herein. This was only with a view to see that the lands have been transferred or not and for no other purpose. In this case, the petitioner through his power of attorney has stated on oath and the learned Advocate for the petitioner also made a statement that the lands are of the petitioner and without following the procedure for acquisition and compensation, he is likely to be dispossessed. ( 4 ) ). Yesterday, Mr. Kavina appeared for Mr. Oza and argued the matter with vehemence that the petitioner cannot be sigled out in the manner in which he is being singled out by the authorities of the State. His grievance was that without following the procedure laid down under the law, he cannot be deprived of his property. It seems that neither the learned Advocate who filed the petition nor the learned Advocate who argued the case for the petitioner before us were aware about the notification placed before the lower Court and before this Court in appeal from Order. We have called for the record and proceedings from the ahmedabad City Civil Court and Appeal from Order decided by the High Court, being Appeal from Order No. 78 of 1995 arising out of Civil Suit No. 3138 of 1991. We note here that yesterday, learned Advocate Mr. Kavina, from his brief passed on zerox copies of papers and we found that respondent No. 2 has pointed out that the lands have been acquired vide Bombay Government Gazette and to that effect trial Court has observed in its order. ( 5 ) ). We note here that yesterday, learned Advocate Mr. Kavina, from his brief passed on zerox copies of papers and we found that respondent No. 2 has pointed out that the lands have been acquired vide Bombay Government Gazette and to that effect trial Court has observed in its order. ( 5 ) ). The petitioners Advocate contended that even if the suit is perused, it becomes clear that the relief prayed is different and therefore, the petition is maintainable. It is stated after reading para 7 that the suit was filed for different purpose and the subject-matter is totally different. It is further stated in para 7 that the petitioner is seeking a declaration that the acquisition proceedings, if any, had taken place, then the same are bad and illegal as no notices are served upon the petitioner and no compensation has been paid to the petitioner. In para 8 of the petition, the petitioner has come out with a version that on investigation, the petitioner came to know that in 1942, under Defence of India Rules, certain lands were requisitioned and thereafter, in the year 1949, such requisitioned lands were acquired after following the procedure of issuing notification under Land Acquisition act, but in the petitioners case, no such procedure has been followed and no notices are issued to the petitioner nor any award has been passed regarding compensation for the lands. If these statements are made by the petitioner after investigation and if found to be true, the matter would be altogether different, but in the instant case, it appears that aforesaid statement in para 8 is false to the knowledge of the petitioner, which we will point out hereinafter. When the matter was being argued the learned Advocate was armed with all the papers placed on record of the trial Court. ( 6 ) ). In the Ahmedabad City Civil Court, the petitioner filed a Civil Suit without giving notice under Sec. 80 (2) of the Civil Procedure Code inter alia contending that he is the owner of the lands referred to in this petition and VII/xii forms indicate "acquired". There is nothing to show for what purpose the same has been acquired and in form No. VII/xii, he is shown as the owner. There is nothing to show for what purpose the same has been acquired and in form No. VII/xii, he is shown as the owner. It is also stated that he is the owner of the lands and he is in possession of the lands and inspite of this on 4-6-1991, officers of the defendants tried to take possession of the lands. It is averred in the suit that in absence of any acquisition proceedings and in absence of award of compensation, the petitioner restrained the officers from taking possession and demanded for the order or authorisation for taking possession, but as officers came without any papers, they threatened that within two-three days, they will come back and therefore, the suit is filed. In para 4 of the plaint, it is stated that the lands in question might have been requisitioned under Defence of India Rules in 1942, that is at the time of war. It is further stated that thereafter in 1949, the Collector, ahmedabad issued a notification under the provisions contained in Requisitioned land (Continuance of Powers) Act, 1947 for acquisition, but thereafter, no further proceedings have taken place. It is averred in para 5 that the Arbitrator declared his award in 1968 for the lands acquired, but so far as the lands in question are concerned, there are no arbitration proceedings and no compensation has been paid and that the lands have been released from requisition. In para 6 of the plaint, it is contended that since 60 years, the possession is of the petitioner and possession is never taken by the Airport Authority or by the Government. He has stated in para 7 of the plaint that the notification which was issued in the year 1949 may be under the provisions contained in the Land Acquisition Act. He came out with a specific case that the Defence of India Rules and Requisitioned Land (Continuance of Powers) Act, 1947 is not in force. It is also contended that in view of the amended provisions of the Land Acquisition Act within two years, if no award is made, then proceedings are automatically lapsed. Therefore, in the instant case, even if such a notification has been published in past, the same is lapsed. On these grounds, the suit was filed by the petitioner through his power of attorney Jayendra Shivlal Patel. ( 7 ) ). Therefore, in the instant case, even if such a notification has been published in past, the same is lapsed. On these grounds, the suit was filed by the petitioner through his power of attorney Jayendra Shivlal Patel. ( 7 ) ). From the record of the trial Court, it appears that National Airport Authority filed its written statement denying the averments made by the petitioner in the plaint. It is pointed out that the lands in question have been taken in possession under the notification issued under the provisions contained in the Requisitioned Land (Continuance of Powers) Act, 1947. It is pointed out that after acquisition, the said lands are in possession of the Airport Authority and have never remained in possession of the petitioner and that the petitioner has suppressed these material facts. It is pointed out by the Airport Authority that the notification was issued in the year 1949, and it is not true that the proceedings have not been initiated. The contention raised by the petitioner in the suit that the compensation is not paid is also denied. It is also stated that the petitioner has made a false averment in the suit that the lands have been released from acquisition. It is pointed out by the Airport authority that the lands in question were acquired in the year 1949 by a notification in accordance with law and since then the lands vest in the Central Government. The notification for these lands is also produced on record by the Airport Authority and we find that the lands have been acquired by issuance of a notification in the bombay Government Gazette dated March 31, 1949 (Part I page 1567 ). The collector in exercise of powers conferred by sub-rule (1) of Rule 75-A of the defence of India Rules read with notification of Government of India, Defence Cooperation department No. B 36/or/1/42 dated 25th April, 1942, requisitioned the lands specified in the Schedule appended. The said lands are requisitioned in October, 1942 within the meaning of Sec. 2 (4) of the Requisitioned Land (Continuance of powers) Act, 1947 (Act XVII of 1947) and continued to be subject to requisition under Sec. 3 of the said Act. The said lands are requisitioned in October, 1942 within the meaning of Sec. 2 (4) of the Requisitioned Land (Continuance of powers) Act, 1947 (Act XVII of 1947) and continued to be subject to requisition under Sec. 3 of the said Act. The notification makes it clear that the powers have been conferred by Sec. 5 of the Act read with Government of India, Army Branch, notification No. 2481-A dated 28th September, 1947 and that makes it clear that in pursuance of sub-sec. (2) of Sec. 5 of the Act, the said lands on and from the beginning of the day on which the notice is published in the official gazette vest absolutely in the Central Government free from all encumbrances and the period of requisition of such lands has come to an end. Thus, it is very clear that the lands vest in the Central Government free from all encumbrances and by an earlier notification, the lands were requisitioned. That requisition has come to an end by this notification and there is vesting of these lands in the Central Government. The schedule of this notification covers lands of the petitioner. These facts were placed before the learned City Civil Judge. The petitioner has filed his rejoinder vide Exh. 16. Thus, it is clear that it was within the knowledge of the petitioner that the lands vest in the Central Government and by suppressing all these material facts, petitioner has approached this Court. Even in this Court, when the Appeal from Order was preferred, the material was placed and the Appeal from Order came to be dismissed. It appears that the petitioner thereafter, moved the learned single Judge for review of the order making grievance that the applicant has not received any amount of compensation eventhough the lands in question have been acquired. Therefore, even before this Court, the petitioner made a statement that the lands have been acquired. However, the Court made observations that it would be open to the applicant to initiate appropriate proceedings before appropriate authority. Petitioner was not permitted to approach the Court yet the learned Advocate made a statement that the Court permitted the petitioner to approach the appropriate Court. Mr. Oza stated that the petitioner did not give papers of the Appeal from Order or the suit pending before the trial Court and therefore, he could not verify the record. That may be so. Mr. Oza stated that the petitioner did not give papers of the Appeal from Order or the suit pending before the trial Court and therefore, he could not verify the record. That may be so. He could have taken inspection of the record earlier; the facts about pendency of proceedings and Appeal from Order being disposed of by this Court, were within his knowledge. Learned Advocate made a statement at the Bar that the petitioner is making a statement on oath that the lands are not at all acquired and the compensation is not paid. The learned Advocate could have questioned his client so as to elicit the truth and should have taken inspection of the record which was in this Court or should have seen the plaint, the written statement, documents placed on record and the order passed by the trial Court and should have verified as to what is the exact position. The process of this Court cannot be utilised with a view to make an inquiry whether his client is telling the truth or not or there is some substance in what his client states. ( 8 ) ). It is expected from an Advocate, who is an officer of the Court to refer to all the relevant documents before filing a petition under Art. 226 of the constitution of India. An Advocate being an officer of the Court is a responsible person answerable to the Court. He need not only be a mouthpiece of his client and is not expected to present the case as the litigant desires, more particularly in a case like this where the proceedings pending before trial Court and proceedings filed by the petitioner in this Court and dismissed by the learned Judge could have been inspected. (The litigant has conveyed him the details and facts about these proceedings and thus were within the knowledge of the Advocate ). An Advocate is not a mere agent of his client and he is not bound to act as his client dictates. He has responsibility to the Court which overrides his obligation to the client. He has to judge what is right and proper; and he has to act in the interest of the truth. An Advocate is not a mere agent of his client and he is not bound to act as his client dictates. He has responsibility to the Court which overrides his obligation to the client. He has to judge what is right and proper; and he has to act in the interest of the truth. He enjoys privilege to practise in Courts of law by reason of his character and assurance of right conduct and not by reason of passing only a degree in law. Neither the Advocate before drafting the memo of the petition nor even while arguing the petition earlier nor even the Counsel arguing the matter before the Court have taken care to read the papers filed in trial Court, order passed by the trial Court or the papers produced on record in Appeal from Order filed against the trial Courts order. It is the duty of the legal practitioner to go through the proceedings when it is brought to his notice that proceedings have been initiated with regard to the subject-matter. ( 9 ) ). Mr. Panchal, learned A. G. P. has called for the record from the Competent authority under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and has pointed out that the petitioner has not shown these lands as of his holding. If he was really an occupier and an owner of the lands since more than 60 years as he is claiming today, he would have shown these lands in form No. 6 of that Act. The Panchnama and the original file was called for by the A. G. P. and on affidavit before the Competent Authority, the petitioner has indicated his holding. We may note here that these lands were not shown as his holding. ( 10 ) ). Thus, the petitioner very well knew that the lands vest in the Central government. Eventhough he has filed a suit, making some averments contrary to the record and though the Airport Authority pointed out by placing on record that the lands in question have vested in the Central Government, yet the petitioner has approached this Court by suppressing material facts to his knowledge. ( 11 ) ). It was argued before us that the petition is not maintainable. ( 11 ) ). It was argued before us that the petition is not maintainable. It was pointed out by the learned A. G. P. that the petitioner cannot have parallel proceedings in the City Civil Court as well as in this Court. ( 12 ) ). Mr. Panchal, learned A. G. P. relied on the judgment in the case of Durga prasad v. Naveen Chandra and Ors. , reported in JT 1996 (3) SC 564 and argued that the petition is not maintainable as the petitioner has already filed the suit and the remedy provided is under Civil Procedure Code and the petition is not maintainable under Art. 226 of the Constitution. No doubt, for the same subjectmatter, suit is preferred and is pending and the relief which could be granted by the Civil Court, Special Civil Application cannot be filed. Appeal from Order is filed which is a remedy available under Civil Procedure Code and if he is aggrieved by the decision, he may approach higher forum, but he cannot file a petition under art. 226 of the Constitution. As observed by the Apex Court in the aforesaid judgment "instead of availing of that remedy, the appellant has invoked jurisdiction of writ under Art. 226 which is not warranted and the procedure prescribed under civil Procedure Code cannot be by-passed by availing of the remedy available under Art. 226. Under these circumstances, we decline to interfere with the orders. " the Apex Court further observed that "it is open to the appellant to avail of such remedy as is open under law. " ( 13 ) ). Mr. Kavina for Mr. Oza stated that the prayers are different. We have seen the prayers. Reading the prayers, contents of the plaint and the contents of the petition as well as prayer clause in the petition, the matter is substantially the same and the reliefs are the same. If there is no relief for compensation, the same could have been made and for that if relief is made in the present petition, it cannot be said that the relief is different, but it is an additional relief only. Mr. Kavina stated that the trial Court could not have quashed the notification issued by the Government. If there is no relief for compensation, the same could have been made and for that if relief is made in the present petition, it cannot be said that the relief is different, but it is an additional relief only. Mr. Kavina stated that the trial Court could not have quashed the notification issued by the Government. Suffice it is say that the learned Advocate was not knowing as to under what provision of law, the notification has been issued and therefore, he did not know about the notification and hence there is no question. Once the notification is published in the Gazette in exercise of powers conferred under the provisions contained in Requisitioned Land (Continuance of Powers) Act, 1947 whereby the lands vest in the Central Government, there is no question of challenging the same by this petiton after the period of 45 years. This petition is nothing but an abuse of process of this Court. We were of the opinion that a serious view of the matter be taken and the petitioner be dealt with strictly but the learned Advocate Mr. Oza pointed out that the petitioner is 89 years of age and there are two different power of attoney holders. For a notification issued by the State Government in 1949, the form filled in by the petitioner, wherein he has not declared on oath that the lands in question are his holding, and for the claim made by the petitioner with regard to possession and ownership, there was no explanation whatsoever. Under the circumstances, we dismiss the petition with a direction to the petitioner to pay a sum of Rs. 10,000. 00 (Rupees Ten thousand only) in all by way of exemplary costs, which shall be deposited in this Court and the amount shall be transmitted to the Legal Aid committee. The petitioner has already deposited Rs. 5,000. 00 (Rupess Five thousand only) and the remaining amount of Rs. 5,000. 00 (Rupees Five thousand only) shall be deposited within a period of one week from today. ( 14 ) ). The petition is dismissed with costs as aforesaid for the reasons stated above. .