Shivalik (Aambali) Co-Op. Housing Society v. State Of Gujarat
2008-08-11
RAVI R.TRIPATHI
body2008
DigiLaw.ai
JUDGMENT : Ravi R. Tripathi, J. Mr. Patel, learned Advocate for the petitioners submitted that name of petitioner No. 2 is stated to be Babubhai Patel, which ought to have been Babubhai Jamnadas Patel. The learned Advocate seeks permission to amend the name. Permission is granted. 2. The present petition is filed by Shivalik (Aambali) Co-operative Housing Society, through its Chairman Shri Ronakbhai Kiritbhai Shah along with nine other petitioners. Petitioner No. 2 is Babubhai Patel, whose name is now corrected to Babubhai Jamnadas Patel, petitioner No. 3 is Sitaben Jamnadas Patel, petitioner No. 4 is Ketanbhai Babubhai Patel, petitioner No. 5 is Lalitbhai Babubhai Patel, petitioner No. 8 is Madhuben Babubhai Patel and petitioner No. 9 is Vaibhav Babubhai Patel, prima facie they all appear to be related to each other, forming a family. 3. From the facts of this case, an inevitable scenario emerges to the effect that, there is one particular section in the society is of the opinion that as it has money power and/or muscle power along with political support, and hence, it can do away with all or any requirement/s prescribed under the law regulating the society at large. Sooner the better - this section of the society is required to be conveyed that it is not the correct belief. 4. The petitioner-society is before this Court along with other petitioners praying that : "16. (A) to quash and set aside the judgment and order of the State Government dated 5-5-2007 passed in Revision Application No. 7 of 2006 at Annexure-B. (B) to confirm the judgment and order dated 19-4-2005 passed by the Executive Committee of the Ahmedabad District Panchayat granting N.A. permission for the suit land at Annexure-A." 5. Order dated 19-4-2005 is produced at Annexure-A. The petitioner-society, though not in picture in this order, has challenged the same. Few facts as set out in the course of this judgment are required to be noted which will give an idea as to why and in what circumstances this order is passed by the authority. One Chitrak S. Shah, acted as Power of Attorney Holder of the person, who is described to be in possession of the land admeasuring 22,805 sq.mtr. of Final Plot No. 63, which was given Block Nos. 86+101+102, 87, 103, 109/A, 109/B, 110, 111/A, 112/A, 112/B, 113/B, 114 and 553 of village Aambali, Tal.
One Chitrak S. Shah, acted as Power of Attorney Holder of the person, who is described to be in possession of the land admeasuring 22,805 sq.mtr. of Final Plot No. 63, which was given Block Nos. 86+101+102, 87, 103, 109/A, 109/B, 110, 111/A, 112/A, 112/B, 113/B, 114 and 553 of village Aambali, Tal. : Dascroi - that person is Shri Bababhai Jamnadas Patel. 5.1. Item No. 1 of order dated 19-4-2005 reads that, 'Final Plot No. 63 admeasures 22,805 sq.mtr.' It is not mentioned that application is made for part of Final Plot No. 63 + 29. It is on record, of which a judicial notice can be taken, that Final Plot No. 63 + 29 admeasures more than 52,000 sq.mtr. Not only that, there is purposeful silence about the other persons who were in possession of land bearing various Block numbers of village Amhli, Tal. : Dascroi. It is not difficult to understand that the name of Shri Babubhai Jamnadas Patel was mentioned with a definite purpose. The Court can safely draw an inference that his name was mentioned not because he is a sitting Member of Legislative Assembly, but because he happens to he a Member of Legislative Assembly from the ruling party in the State (Emphasis supplied). Though, the documents which could have shown the names of the persons in possession of the land in question, were required to be mentioned in the same Item No. 1, the same were not mentioned. Order dated 19-4-2005 is communicated by the District Development Officer, who is the Secretary of the Executive Committee of District Panchayat, Ahmedabad. The same is certified by the Deputy District Development Officer (Revenue), District Panchayat, Ahmedabad. It is also important to note that though the names of 24 persons are mentioned, the order is forwarded to one and only one Shri Babubhai Jamnadas. 5.2. At this juncture, the learned Advocate for the petitioners submitted that it is not that the order was sent only to Shri Babuhhai Jamnadas, but the copy which was marked to Shri Babuhhai Jamnadas, who is petitioner No. 2, is produced. There is no mention in this regard in the petition. 5.3.
5.2. At this juncture, the learned Advocate for the petitioners submitted that it is not that the order was sent only to Shri Babuhhai Jamnadas, but the copy which was marked to Shri Babuhhai Jamnadas, who is petitioner No. 2, is produced. There is no mention in this regard in the petition. 5.3. It is required to be noted that Shri Chitrak S. Shah was acting as a Power of Attorney Holder of so many persons who were described to be in possession of the land in question, the copy of the order marked to Shri Babubhai Jamnadas is produced with the petition, which fortifies the fact that Shri Bahubhai Jamnadas is the moving force behind this litigation. 6. After passing of order dated 19-4-2005, some of the persons, who were in possession of some of the parcels of lands, were also included as party to the order by the Power of Attorney Holder - Shri Chitrak S. Shah. The matter then came to the notice of the higher authority, on which the higher authority deemed it fit to issue show-cause notice dated 30-6-2006, a copy of which is produced at Annexure-L to the petition. It will not be in appropriate to mention that, that notice was addressed to the Power of Attorney Holder - Shri Chitrak S. Shah of Shri Babubhai Jamnadas Patel etc. (Emphasis supplied). After the show-cause notice was issued, the matter was heard by the Principal Secretary (Appeals), Revenue Department, order impugned in this petition dated 5-5-2007 was passed. 7. The Principal Secretary (Appeals) has passed a detailed order. In the opening part of the order, factual aspect is recorded to the effect that on an application of Power of Attorney Holder - Shri Chitrak S. Shah, seeking N.A. permission from the District Development Officer for the residential purpose. the District Development Officer by its order dated 19-4-2005 granted the N.A. permission for Block Nos. 86+101+102, 87, 103, 109/A, 109/B, 110. 111 /A, 112/A, 112/B, 113/B, 114 and 553, forming Final Plot No. 63, admeasuring 22,805 sq.mtr. The Principal Secretary (Appeals) has also recorded that notice was issued to the effect that as to why the said order should not be taken in suo mote revision under Section 211 of the Land Revenue Code for the reasons stated in the notice.
111 /A, 112/A, 112/B, 113/B, 114 and 553, forming Final Plot No. 63, admeasuring 22,805 sq.mtr. The Principal Secretary (Appeals) has also recorded that notice was issued to the effect that as to why the said order should not be taken in suo mote revision under Section 211 of the Land Revenue Code for the reasons stated in the notice. The Principal Secretary (Appeals) has set out as many as three reasons for taking that order in revision and after recording as many as eight submissions of the learned Advocate appearing for the Power of Attorney Holder - Shri Chitrak S. Shah on behalf of Shri Babubhai Jamnadas Patel, etc., passed the order. While passing the order, the Principal Secretary (Appeals) did take into consideration the original file of the office of the District Development Officer for grant of N.A. permission and written submissions of' the learned Advocate for the opponents in response to the show-cause notice. It is after taking into consideration the same, a finding is recorded that, "in the original file of the District Development Officer, the Power of Attorney of the owner/possessor of Block No. 533 is not traced; that village Form No. 7/12 of Block No. 533 does disclose that besides one Shri Kashiram Khodabhai, there are other persons who are shown to be in possession of Block No. 533, viz. Mahendrabhai Kashiram, Bhalchandra Kashiram, Narendrakumar Kashiram, Pravinbhai Kashiram and Jadiben Kashirant. (Emphasis supplied) 7.1. The fact of Village Form No. 7/12 is recorded by the Principal Secretary (Appeals) to show that assuming for the sake of argument that the Power of Attorney executed by Shri Kashiram Khodabhai (which is not traceable on file), was on record, Shri Chitrak S. Shah could not have acted upon the same because there were other persons, who were shown to be in possession on Block No. 533. So far as these persons are concerned, it is not the case of Shri Chitrak S. Shah also that they had executed a Power of Attorney in his favour at any point of time. 7.2.
So far as these persons are concerned, it is not the case of Shri Chitrak S. Shah also that they had executed a Power of Attorney in his favour at any point of time. 7.2. The Principal Secretary (Appeals) has examined the case put forward by the Power of Attorney Holder - Shri Chitrak S. Shah in detail and has come to the conclusion that as no `Power of Attorney' was found in original papers of the District Development Officer, Shri Chitrak S. Shah had no authority to seek N.A. permission qua Block No. 533. In the alternative, it is considered by the Principal Secretary (Appeals) that assuming that a Power of Attorney was executed by Shri Kashiram Khodabhai in favour of Shri Chitrak S. Shah, other persons, whose names are shown in village Form No. 7/12 of land bearing Block No. 533 had not executed any `Power of Attorney' in his favour even as per his own say. 7.3. While examining the entire case in detail, the Principal Secretary (Appeals) has summarised the details in a tabular form. The names of the persons who gave Power of Attorney, the name of the person in whose favour the Power of Attorney was given, the land bearing Block number and the date of giving Power of Attorney. In all, there are thirteen items in the table. The application seeking N.A. was made on 28-1-2004. The said application was completed by filing necessary documents, asked for by the District Panchayat by filing an additional application on 27-8-2004, which is described as, "Purtata Arji" (supplementary application). 7.4. The Principal Secretary (Appeals) has also recorded that from the papers, it transpires that A.U.D.A. sanctioned the plans on 14-10-2003. A copy of sanction letter dated 14-10-2003 is made available by learned Advocate Mr. Nikhilesh J. Shah appearing for the Ahmedabad District Panchayat. This letter is addressed to 'Shri Chitrak S. Shah' - Power of Attorney Holder, that means it was Shri Chitrak S. Shah only who produced the plans before the A.U.D.A. for getting them sanctioned. 7.5. Learned Advocate Mr. Shah, who is also on the panel of A.U.D.A., was requested to find out from A. U. D. A. as to when the plans, which were sanctioned on 14-10-2003, were submitted to A. U. D. A. by the Power of Attorney Holder - Shri Chitrak S. Shah. Learned Advocate Mr.
7.5. Learned Advocate Mr. Shah, who is also on the panel of A.U.D.A., was requested to find out from A. U. D. A. as to when the plans, which were sanctioned on 14-10-2003, were submitted to A. U. D. A. by the Power of Attorney Holder - Shri Chitrak S. Shah. Learned Advocate Mr. Shah apprised the Court that the Power of Attorney Holder had submitted the plans for sanction on 5-9-2003. 7.6. This assumes significance in light of the fact that the persons, whose names are mentioned at Sr. Nos. 2 and 10 of the table, had not executed any Power of Attorney in favour of said Shri Chitrak S. Shah on 5-9-2003. That being so, act of Shri Chitrak S. Shah of submitting the plans for sanction to A.U.D.A. for the land of the persons, whose names are mentioned at Sr. Nos. 2 and 10, was without any authority of law. 7.7. The aforesaid facts are sufficient to reject the argument advanced by the learned Advocate for the petitioners that the authority could not have taken order dated 19-4-2005 in revision. The fact that the order, which is the subject- matter of revision, was obtained by a person who had no authority to make an application for getting the plans sanctioned, and therefore, there is no question of any limitation period being applicable to such an order. It is clear from the table that the persons whose names are mentioned at Sr. Nos. 2 and 10 executed Power of Attorney in favour of Shri Chitrak S. Shah only on 11-11-2003 and 19-12-2003 respectively. Thus, not only on the day of submitting of an G.R. 561 application, i.e. 5-9-2003 but even on the day on which the plans were sanctioned. i.e. 14-10-2003, Shri Chitrak S. Shah had no authority for making such application on their behalf. 7.8. The learned Advocate for the petitioner is not able to point out any valid reason for which said Shri Chitrak S. Shah assumed this power and made application to A.U.D.A. for getting the plans sanctioned on behalf of the persons who never authorised him for the same. Similar will be the case so far as application for grant of N.A. permission is concerned, qua the owner/possession holder of land bearing Block No. 533. 8. The learned Senior Advocate Mr. Oza for respondent Nos.
Similar will be the case so far as application for grant of N.A. permission is concerned, qua the owner/possession holder of land bearing Block No. 533. 8. The learned Senior Advocate Mr. Oza for respondent Nos. 3 to 7 invited attention of the Court to Form-F prepared under Rules 21 and 35 of the Gujarat Town Planning and Urban Development Rules, 1979 for the Draft Town Planning Scheme No. 212 (Aambali). The learned Senior Advocate for respondent Nos. 3 to 7 also pointed out that the total area of land of all the Block numbers included in the application comes to 74,764 sq.mtr. The Final Block number given to all these Block numbers is `63 + 29' as is mentioned in the said form. The said Final Block admeasures 52,335 sq.mtr. Out of this total land, admeasuring 52,335 sq.mtr., N.A. was applied for 22,805 sq.mtr. only. 8.1. The learned Senior Advocate for respondent Nos. 3 to 7 next submitted that the influence of the petitioners, more particularly petitioner No. 2, is visible from the fact that though it is mentioned in order dated 19-4-2005 that qua land bearing Block Nos. 58, 59, 80, 82. 83, 84 and 85, the orders of deleting new tenure land are passed and the said orders are in review before the Collector not only that Block No. 58 admeasuring 0.05 gunthas is of Government waste land and the land bearing Block No. 115 is in dispute before the Deputy Collector (Land Reforms), Ahmedabad, until those cases are decided, N.A. permission cannot be granted, qua these lands. He submitted that A.U.D.A., acting under the influence of petitioner No. 2, granted development permission, qua all these lands without being mindful of the fact that order dated 19-4-2005 had a special condition under condition No. 39 in this regard by order dated 14-10-2003. 8.2. The learned Senior Advocate for respondent Nos. 3 to 7 also submitted that the Collector, in its affidavit filed before this Court in other proceedings, has pointed out in detail the illegalities committed by petitioner No. 2 with regard to lands which shows that what respect petitioner No. 2 holds for the law. 8.3. The learned Senior Advocate for respondent Nos.
3 to 7 also submitted that the Collector, in its affidavit filed before this Court in other proceedings, has pointed out in detail the illegalities committed by petitioner No. 2 with regard to lands which shows that what respect petitioner No. 2 holds for the law. 8.3. The learned Senior Advocate for respondent Nos. 3 to 7 further submitted that Shri Chitrak S. Shah made an application for sanctioning the revised plans much prior to getting an order granting N.A. The order granting N.A. was passed on 19-4-2005, whereas the application for sanction of the revised plans was filed in the month of February, 2005 and that sanction was granted on the same day, i.e. 19-4-2005. This speaks for itself that what the persons concerned in the matter are holding and can do to fulfil their ill-designs. 9. Mr. Shah, learned Advocate for the District Panchayat, was requested to place on record the xerox copy of application dated 28-1-2004. In this application, in the column of the name of the applicant, it is stated, "included in the schedule". In the column of name of the person in possession, it is stated, "included in the schedule". In the Column for complete address of the applicant, it is stated, "all residents of village Aambali, Tal. : Dascroi, through Power of Attorney, S. N. House, Navrangpura, Nr. Law Garden, Ahmedabad". 9.1. The aforesaid details go to show that the application was made in a most casual manner and the information required in an application for such an important purpose of 'getting N.A. permission' was supplied in a most casual manner. Besides, in the entire application, it is nowhere stated that the land for which N.A. is sought for is only a part of Final Plot No. 63 + 29. The learned Advocate for the petitioners may say that the numbers of the Block numbers, of which N.A. was sought for, are set out in the schedule, but then, the learned Advocate for the petitioners is not able to explain as to why it is not mentioned that out of total area of Final Plot No. 63 + 29, i.e. 52,335 sq.mtr. N.A. was sought only for 22,805 sq.mtr. 10. The Revenue Branch of the office of the District Panchayat, by letter dated 5-2-2004, asked for additional documents.
N.A. was sought only for 22,805 sq.mtr. 10. The Revenue Branch of the office of the District Panchayat, by letter dated 5-2-2004, asked for additional documents. That letter was again addressed to the Power of Attorney Holder - Shri Chitrak S. Shah, as Power of Attorney Holder of Babubhai Jamnadas Patel, etc. That shows that the District Panchayat dealt with the Power of Attorney Holder only and it was the Power of Attorney Holder who was before the District Panchayat for all purposes. 11. The aforesaid documents, which were asked for by letter dated 5-2- 2004, were forwarded along with application dated 27-8-2004. It is thereafter that the District Panchayat issued N.A. permission by order dated 19-4-2005. 12. The learned Advocate for the petitioners, very vehemently contended that owner/possession holder of Block No. 533 did not object either at the time of filing of application on 28-1-2004 or on 27-8-2004 when supplementary application was made to cure the defects in the application, therefore, now his legal heirs - as he has expired on 6-2-2005, cannot be heard. 12.1. This submission of learned Advocate for the petitioners would have warranted some attention and would have been upheld also if the case of the petitioners or for that reason of the Power of Attorney Holder - Shri Chitrak S. Shah was that he had intimated to the person concerned about his acting as a Power of Attorney Holder on his behalf. This submission is totally misplaced because the case of the heirs of the deceased - Kashiram Khodabhai is that his father had never executed any Power of Attorney in favour of said Shri Chitrak S. Shah. If a Power of Attorney is got executed in favour of the Power of Attorney Holder without the knowledge of the person by whom it is said to have been executed then where is the question of taking a plea that, that person did not object at the time when Power of Attorney Holder was acting on his behalf. The submission is liable to be rejected and it is accordingly so done. 13.
The submission is liable to be rejected and it is accordingly so done. 13. The learned Advocate for the petitioners next submitted that as Block No. 533 is kept out while executing the sale-deeds by the Power of Attorney Holder - Shri Chitrak S. Shah in favour of the petitioner society in August, 2005, the heirs of deceased Kashiram Khodabhai the owner/possession holder of Block No. 533 have no reason to make any grievance against the Power of Attorney Holder. 13.1. The 'Index form' from the Office of the Sub-Registrar are produced at Annexure-C, colly. They are nine in numbers. 13.2. The learned Advocate for the petitioners requested that as the first and the last documents are the same pertaining to land bearing Block No. 86, one of them may be discarded. The request is granted. The documents, therefore, remain eight in number. 13.3. All these documents show that the person who executed the documents is the Power of Attorney Holder of Shri Babubhai Jamnadas Patel. Confirming party is one Shri Ronak Kiritkumar Shah - a promoter of Shivalik (Aambali) Co-operative Housing Society (proposed), whereas in the column of the person in whose favour the document is executed, the name of Shivalik (Aambali) Co- operative Housing Society Ltd.. through its President Ronak Kiritkumar Shah is mentioned. 13.4. So far as document with regard to land bearing Block Nos. 103, 111A, 110 and other documents are concerned, therein, in addition to the name of Babubhai Jamnadas Patel, other names, viz. Sitaben Jamnadas Patel, Ketanbhai Babubhai Patel, Lalitbhai Babubhai Patel, Dahyabhai Chelabhai Patel and Chaturbhai Chelabhai Patel are mentioned. In the document relating to land bearing Block Nos. 114, 113B and 87, in addition to the name of Babubhai Jamnadas Patel, names of Madhuben Babubhai Patel, Ketanbhai Bahuhhai Patel, Lalitbhai Babubhai Patel and Vaibhav Babubhai Patel are mentioned. So far as document relating to Block Nos. 109A, 109B and 112A is concerned, the same is executed by Shri Chitrak Satishbhai Shah as a Power of Attorney Holder of Smt. Nirmalaben Chunilal Thakkar. 13.5. All these details are set out to show that Chitrak Satishbhai Shah has acted at every stage.
So far as document relating to Block Nos. 109A, 109B and 112A is concerned, the same is executed by Shri Chitrak Satishbhai Shah as a Power of Attorney Holder of Smt. Nirmalaben Chunilal Thakkar. 13.5. All these details are set out to show that Chitrak Satishbhai Shah has acted at every stage. It is not the case of anybody that these original persons were not available in the city or that they were incapacitated or for any other reason they were not able to execute the document themselves, and therefore, the documents were required to be executed through Power of Attorney. Therefore, the only inference which can be drawn from these facts is that with a view to see that the things could be wrapped up in a confidential manner, the documents were got executed by the Power of Attorney Holder, acting on behalf of all the persons, whose names are mentioned in those documents. 14. All this assumes significance because it inevitably shows that the petitioner-society and other persons who are before this Court, challenging the order passed by the Principal Secretary (Appeals) dated 3-5-2007, whereby N.A. is cancelled, were acting under a belief that due to their position - social and political, the money power they have, they can do anything and no law could restrain them. 15. As per the submission of the learned Advocate for the petitioners, the main question which falls for consideration of this Court is, whether the Principal Secretary (Appeals) could have passed the order impugned at this stage, which according to him is a belated one. The learned Advocate for the petitioners relied upon various decisions of the Hon'ble the Apex Court and also of this Court in support of his submissions. The gist of his submissions is : (1) Order dated 3-5-2005 travels beyond the scope of show-cause notice dated 30-6-2006 (Annexure-L to the petition). (2) The persons whose names are mentioned at Sr. Nos. 2 and 10 in the table in the order impugned, have never objected to the action/grant of N.A. permission obtained by the Power of Attorney Holder. (3) Order dated 3-5-2005 is passed beyond a reasonable period. (4) The Power of Attorney Holder has not acted in a manner which can be said to be prejudicial to the land owners. (5) The petitioner-society is not given any notice and no hearing was given to the society.
(3) Order dated 3-5-2005 is passed beyond a reasonable period. (4) The Power of Attorney Holder has not acted in a manner which can be said to be prejudicial to the land owners. (5) The petitioner-society is not given any notice and no hearing was given to the society. (6) If at all order dated 19-4-2005 granting N.A. deserves to be cancelled, it ought to have been cancelled only qua land bearing Block No. 533. (7) If the A.U.D.A. acceded to the request of the petitioners for giving final plot in lieu of land bearing Block No. 533, this matter would have a different dimensions. 16. The learned Advocate for the petitioners submitted that his third submission assumes importance, because of the intervening events, viz. the change of ownership of the land and the construction which is put up. He submitted that the order granting N.A. dated 19-4-2005 stood executed, and therefore, there was no question of taking such an order in revision which is already executed. 17. This Court finds no merit in any of the above submissions. The first submission that the order travels beyond the scope of the show-cause notice is found not worth accepting. There are three reasons set out in the show-cause notice : (1) That the owner of Block No. 533 has filed an objection application contending that the application for grant of N.A. was made without obtaining his consent. (2) So far as land bearing Block Nos. 58, 59, 80, 82, 83, 84, 85 and 115 is concerned, there is a litigation going on at the Collector level, and therefore, no permission is granted qua these Block numbers and as prescribed in condition No. 40 of order dated 19-4-2005, the possession holder has not obtained the revised permission from A.U.D.A. and produced before the authority. (3) The application for getting N.A. permission is filed by the Power of Attorney Holder of the possession holder. 17.1. In the application filed for getting N.A. permission, it is mentioned that the same is filed by the Power of Attorney Holder of the possession holder of the land and that there was objection filed by the owners of land hearing Block No. 533, whose land was included by A.U.D.A. without obtaining their consent and last but not the least, that there is some litigation pending qua the lands bearing Block Nos.
58, 59, 80, 82, 83, 84, 85 and 115. 17.2. The show-cause notice did indicate that the order granting N.A. is taken for scrutiny for the grounds set out therein. The revisional authority while examining the matter to find out the irregularity or illegality committed by the authority in the matter of grant of N.A. noticed glaring irregularities and illegalities apparent on the record of the case. The act of taking these irregularities and illegalities into consideration cannot be said to be prejudicial to the Power of Attorney Holder. Hence, this submission is not accepted. 17.3. So far as factual aspect is concerned, land bearing Block No. 533 had more than one possession holders, it is clear from Village Form No. 7/12, a copy of which is made available to this Court by learned Advocate Mr. Shah appearing for the District Panchayat. It is not the case of the Power of Attorney Holder that besides Kashiram Khodabhai, qua whom he claims to have a Power of Attorney, any other person had also executed any Power of Attorney in his favour. That being so, the act of Power of Attorney Holder of applying for grant of N.A. for land bearing Block No. 533, which was in possession of more than one person, is without any authority. 18. If the submission of the learned Senior Advocate for the petitioners is accepted which is to the effect that the Power of Attorney Holder has not acted prejudicial to the rights of the land owners then the resultant effect of it will be that anybody can apply for N.A. permission on behalf of any person and will defend its act, which is without any authority, by saying that I am not acting prejudicial to the rights of the land owner. This Court, even with strenuous effort, is not able to accept this submission of the learned Senior Advocate for the petitioners. In fact, the Court finds it strange that such a submission is coming from a seasoned Senior Advocate Mr. Patel, who is exclusively practicing on civil side and day in and day out deals with such matters. 18.1.
This Court, even with strenuous effort, is not able to accept this submission of the learned Senior Advocate for the petitioners. In fact, the Court finds it strange that such a submission is coming from a seasoned Senior Advocate Mr. Patel, who is exclusively practicing on civil side and day in and day out deals with such matters. 18.1. This Court is at a loss as to what will be the scenario if the submission of the learned senior Advocate for the petitioners is accepted that any person who is a stranger can apply for grant of N.A. permission for the land belonging to some body else and can then come to the Court and say that well I have not acted against the interest of the land owner. The Court is of the opinion that this point cannot be stretched any further and is liable to be rejected and it is accordingly so done. 19. So far as submission of the learned Senior Advocate for the petitioners that the persons whose names are mentioned at Sr. Nos. 3 and 10 in the table of the order impugned is concerned, they had not complained about the act of applying for N.A. by the Power of Attorney Holder, the question which arises for the consideration of the Court is as to whether they were conveyed by the Power of Attorney Holder that he is applying for N.A. on their behalf and then they chose not to complain about the same. 19.1. Similar question arises for the consideration of this Court when it is vehemently argued by the learned Senior Advocate for the petitioners that the deceased Shri Kashiram Khodabhai did not object to the action of the Power of Attorney Holder - Shri Chitrak S. Shah during his life-time. This is argued as if Shri Chitrak S. Shah notified to Shri Kashiram Khodabhai that well he has got Power of Attorney fabricated in his own name and now he is acting on behalf of the deceased. This submission has no merit unless there is material to show that deceased Shri Kashiram Khodabhai was made known that, a Power of Attorney is got executed/fabricated in favour of Shri Chitrak S. Shah and Shri Chitrak S. Shah is to act upon that.
This submission has no merit unless there is material to show that deceased Shri Kashiram Khodabhai was made known that, a Power of Attorney is got executed/fabricated in favour of Shri Chitrak S. Shah and Shri Chitrak S. Shah is to act upon that. In absence of any such material, the submission of the learned Senior Advocate for the petitioners cannot be accepted, and Bence, it is rejected. 20. Coming to the next question of law that as to whether the time between 19-4-2005 and 30-6-2006 could be said to be a reasonable time or it is much beyond reasonable time on account of which the revisional authority could not have taken the order in revision. In support of his submission, the learned Senior Advocate for the petitioners relied upon a decision of the Hon'ble the Apex Court in the matter of State of Gujarat v. Patel Raghav Natha & Ors., reported in 1969 GLR 992 (SC). The learned Senior Advocate for the petitioners submitted that in fact, there is no time-limit prescribed under Section 211 of the Code, and therefore, as is observed by the Hon'ble the Apex Court, as early as in the year 1969, the power under Section 211 can be exercised only within 'reasonable' time. He submitted that the concept of "reasonable" time is to be derived from the provisions of Section 5, wherein it is provided that once an application made/ filed is not replied within 'three' months, the application stands granted under the deeming fiction, and therefore, the period of 'three' months is the reasonable time for exercise of powers under Section 211. 20.1. The submission of the learned Senior Advocate for the petitioners may sound very attractive and prima facie convincing, but the same cannot be accepted and applied to the facts of the present case. The case on hand is not the case of 'victimization of innocent citizens' of the country. Present is not the case wherein some unscrupulous officer of the Government is out to harass a person who is otherwise a law-abiding citizen.
The case on hand is not the case of 'victimization of innocent citizens' of the country. Present is not the case wherein some unscrupulous officer of the Government is out to harass a person who is otherwise a law-abiding citizen. Present is not the case wherein a person who is illiterate, uninformed and ignorant of day-to-day affairs of life is before the Court and as against that the mighty Government is out to exercise revisional power under Section 211 of the Code to see that the person is deprived of some legitimate rights which are conferred on him by an order, which is now being taken in revision. The case on hand is peculiar. A person armed with money power and also having political support is out to see that all laws are wrapped in a bundle and are kept in a sealed safe deposit vault so as to see that he is able to achieve what he wants to achieve by ignoring every provision of law. 20.2. If the submission of the learned Senior Advocate for the petitioners is accepted, this Court is of the opinion that then any unscrupulous person to achieve his goal will obtain an order by hook or crook and will then see to it that a 'reasonable' time lapses, so that nothing can be done and he cannot be touched as on expiry of so called 'reasonable' time, Government will be rendered powerless and so will be the case with the Courts also. The resultant effect will be that he will then be enjoying the fruits of his illegal action perpetually. 20.3. In the considered opinion of this Court, no law can be interpreted to have such resultant effect, and therefore, the submission of the learned Senior Advocate for the petitioners that, 'order dated 3-5-2005 is required to be quashed and set aside and order dated 19-4-2005 is to be upheld', cannot be accepted. No Court can be unmindful of the facts of the case on hand. The Court has to apply the law to the facts of the case on hand, more so when the Court is exercising the powers conferred under Article 226 of the Constitution of India.
No Court can be unmindful of the facts of the case on hand. The Court has to apply the law to the facts of the case on hand, more so when the Court is exercising the powers conferred under Article 226 of the Constitution of India. In one of the judgments, the Hon'ble the Apex Court, while analyzing the powers of the High Courts under Article 226 of the Constitution of India, has stated that, 'the power under Article 226 must follow to the place whereever injustice is found'. (Emphasis supplied) 21. The learned Senior Advocate for the petitioners also relied upon the following decisions: (1) Bipinchandra G. Dalal & Anr. v. State of Gujarat & Anr., reported in 1987 (2) GLH 127 (Para Nos. 7 to 10). (2) Patel Chhotabhai Madhavbhai & Anr. v. State of Gujarat & Anr., reported in 1995 (1) GLR 407 (Para Nos. 9 and 11). (3) Zabir Mohmad Hafezi Ismail Patel & Ors. v. State of Gujarat & Ors., reported in 1997 (1) GLR 140 (Head Note-A and Para No. 6). (4) M/s. Jailaxmi Estate & Anr. v. State of Gujarat & Ors., reported in AIR 1994 Guj. 38 (Para No. 8). (5) Ravichand Manekchand Sltetlt & Ors. v. State of Gujarat & Ors., reported in 2006 (2) GLR 1567 . (6) Gandabhai Dalpatbhai Patel v. State of Gujarat & Ors., reported in 2005 (2) GLR 1370 (Para Nos. 4, 8 and 10). (7) Aksa Co-operative Housing Society Ltd. v. State of Gujarat & Ors., reported in 1996 (2) GLH (UJ-34) 36 (Para Nos. 7 and 8). (8) State of Punjab & Ors. v. Gurdev Singh and Ashok Kumar, reported in AIR 1992 SC 111 . (9) Sltree Ravidarshan Co-op. Housing Society Ltd., Chalthan & Ors. v. Prafullkuntar Thakar, Secretary, Revenue Department & Anr., reported in 2000 (2) GLR 1639 (Para Nos. 2, 3, 6, 9, 13 and 14). (10) Evergreen Apartment Co-op. Housing Society v. Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113 . (11) Gopalbhai Karamshibhai Patel & Ors. v. C. M. Joshi, Dy. Secretary. Revenue Department, reported in 1976 GLR 108 . (12) Pune Municipal Corporation v. State of Maharashtra & Ors., reported in 2007 (3) GLR 2610 (Para Nos. 35 to 41). (13) Jadav Prabhatbhai Jethabhai v. Parmar Karsanbliai Dhulabkai, reported in 2001 (1) GLR 16 (Head Note-C and Para Nos. 24 and 25). 21.1.
v. C. M. Joshi, Dy. Secretary. Revenue Department, reported in 1976 GLR 108 . (12) Pune Municipal Corporation v. State of Maharashtra & Ors., reported in 2007 (3) GLR 2610 (Para Nos. 35 to 41). (13) Jadav Prabhatbhai Jethabhai v. Parmar Karsanbliai Dhulabkai, reported in 2001 (1) GLR 16 (Head Note-C and Para Nos. 24 and 25). 21.1. In the considered opinion of this Court, none of these decisions is applicable to the facts of the present case. In none of these decisions, the facts were similar to the one on hand. Besides, it is a well settled position in law that a person who purchases rights from a person cannot get the better rights than that person had. That being so, sympathy cannot be invoked in favour of a Co-operative society-petitioner. 21.2. The Court restrains itself from going into the question as to whether the land could have been purchased in the name of the proposed society at the relevant time. Assuming for the sake of argument that it could have been purchased, the society could have purchased only such rights which the 'vendor' had. If the entire edifice is built on a fraud, a person cannot be heard complaining that revisional authority exercised power beyond 'reasonable' time. In the present case, the revisional power is exercised with much promptness, which normally does not happen in the matter of an 'impersonal' Government authority. In the present case, order impugned was passed on 19-4-2005; a show-cause notice was issued on 30-6-2006; the matter was heard and the order was passed on 3-5-2007. 21.3. Besides, this Court is also not going into the question whether between 19-4-2005 and 30-6-2006, the petitioner society could have put up the construction to such an extent, shown in the photographs produced at Annexure-G, page Nos. 112 to 117, by employing the latest - modern technology. On perusal of the photographs, it can easily be inferred that without obtaining the necessary permission, the construction activity must have been undertaken. The construction, of which photographs are on record, could not have been put up within a short span of approximately 14 months. The extent of the construction, shown in the photographs, indicates that it is a result of a deep-rooted conspiracy. The Court is not surprised, looking to the background of the person/s involved in the matter.
The construction, of which photographs are on record, could not have been put up within a short span of approximately 14 months. The extent of the construction, shown in the photographs, indicates that it is a result of a deep-rooted conspiracy. The Court is not surprised, looking to the background of the person/s involved in the matter. If any leniency is shown in this case, that would send wrong message to the society, it will encourage not only illegalities in future, but will also strengthen the belief of a particular section of the society that if you have got money power and if you have got political support, you can act like a 'Monarch' and there is nobody to question you. 22. The learned Senior Advocate for respondent Nos. 3 to 7, whose names appear as the possession holders in Village Form No. 7/12, for land bearing Block No. 533, submitted that not only the petition deserves be dismissed and it should be accordingly so dismissed, but appropriate orders of inquiry against the officers involved in the matter be also passed so as to see that in future nobody misuses the Government machinery and does not act in a manner in which in this case the guilty persons have done. 23. The learned Senior Advocate for respondent Nos. 3 to 7 invited attention of the Court to a decision of this Court in the matter of Govindbhai Somabhai Nai & Ors. v. State of Gujarat & Ors., reported in 1987 (2) GLR 760 . In Para No. 12, the Court has held that : "..........the orders passed by the Taluka Development Officer were ab initio void, and therefore, had no efficacy in the eye of law. Such an order is non- existent and even if not set aside, it has no legal validity or existence. It is not worth the paper on which it is written and no rights flow and no obligations arise therefrom. An order which is nullity in the eye of law, has therefore, to be ignored but since the same came to the attention of the Secretary (Appeals), he thought it wise to put an end to it by exercising jurisdiction under Section 211 of the Code." 23.1.
An order which is nullity in the eye of law, has therefore, to be ignored but since the same came to the attention of the Secretary (Appeals), he thought it wise to put an end to it by exercising jurisdiction under Section 211 of the Code." 23.1. In this case, the Court is required to consider one most important aspect of the matter, i.e. whether, 'a person who is the beneficiary of his own wrong can be heard saying that I have obtained an order (on the face of it, it is illegal) but now you cannot touch that order because I am able to see that illegal order is not disturbed for a particular time (which is 'reasonable' time), and therefore, no Government authority can take that order in revision. This Court is of the considered opinion that a wrongdoer cannot be allowed to put forward such a plea because if this is done, that will lead to an anarchy in the society and that will be the end of the society governed by Rule of law. 24. In the matter of State of Orissa & Ors. v. Brundaban Sharma & Anr., reported in 1995 Supp. (3) SCC 249, the Hon'ble the Apex Court had an occasion to consider almost similar question, wherein the order was taken in revision and where also there was no period of limitation prescribed for taking that order in revision. The Hon'ble the Apex Court observed in Para No. 16 as under : "16. It is, therefore, settled law that when the revisional power was conferred to effectuate a purpose, it is to be exercised in a reasonable manner which inheres the concept of its exercise within a reasonable time. Absence of limitation is an assurance to exercise the power with caution or circumspection to effectuate the purpose of the Act, or to prevent miscarriage of justice or violation of the provisions of the Act or misuse or abuse of the power by the lower authorities or fraud or suppression. Length of time depends on the factual scenario in a given case." 25.
Length of time depends on the factual scenario in a given case." 25. In the case of Koli Nagjibhai Varjan v. State of Gujarat & Ors., reported in 1992 (1) GLR 14 , in Para No. 5, this Court had an occasion to observe as under : "5..........There can be no quarrel against the proposition that when no period of limitation is statutorily provided for, the revisional power prescribed under the statutes should be exercised within a reasonable time. This is necessary with a view to give finality to the orders passed by various authorities which may be subject to revisions and no revisional power is exercised for a considerable time giving rise to equities and promoting the parties to proceed on the footing that the orders passed by the authorities will not be disturbed in exercise of revisional jurisdiction after a lapse of reasonable time. However, same position may not obtain when an authority exercises his power consequent upon a transaction which is statutorily void. Under Section (1) of the said Act the transfer or partition or any land contrary to the provisions of the Act shall be void. In the present case there is a clear finding of fact in the impugned orders that the transfer had taken place on 1st July, 1964 after coming into force of the Consolidation Scheme on 29-12-1960. This finding was arrived at on 8th January, 1979 by the Deputy Collector after the remand order and was confirmed by the State Government in exercise of revisional power under Section 35 of the Act and this the transaction in question on this finding of fact, was clearly void in view of the provisions of Section (1) of the said Act. A transaction which is void is non est and cannot get life merely because the powers of summary eviction were not exercised inunediately. The delay in exercise of powers by the officers cannot validate a transaction which is void ab initio and the Courts ought not to recognise a void transaction even in an indirect way by preventing the authority to exercise its powers consequent upon a void transaction on the ground that the power should have been exercised within reasonable time from the date of transaction......." 25.1.
It will be appropriate to note that the aforesaid observations are made by this Court after taking into consideration the judgment of the Hon'ble the Apex Court in the matter of Raghav Natha (supra). 25.2. This Court is of the opinion that to see that there is no 'anarchy' and that the 'society' does not fall prey to such persons, the Court will have to examine the fact of each case in light of the totality emerging from such facts and will have to then decide its course of action, including the exercise of discretionary power conferred on it under Article 226 of the Constitution of India. 26. The learned Senior Advocate for respondent Nos. 3 to 7 also relied upon following decisions : (1) Bharwad Vira Govind v. State of Gujarat, reported in 1980 (2) GLR 290 . (2) S. P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors., reported in 1994 (2) SCC 1 . (3) Uma Small-Scale Industrial Co-op. Society Ltd. v. Collector, Surat & Ors., reported in 2002 (1) GLR 226 (Para No. 4). (4) Bhanumatiben D. Soni v. State of Gujarat & Anr., reported in 2003 (4) GLR 2808 . 26.1. The aforesaid decisions are not discussed at length because that would have been the repetition of the earlier discussions. 27. In view of the aforesaid discussion and in view of the facts of the present case, this Court is of the opinion that order dated 3-5-2007/5-5-2007 does not warrant an interference at the hands of this Court. The petition fails and is dismissed. Rule is discharged. No costs. The Court restrains itself from awarding cost against the petitioners with a hope that the appropriate authority will take care to see that order dated 3-5-2007/5-5-2007 is taken to its logical conclusion/end. Petition dismissed.