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2013 DIGILAW 76 (GUJ)

Dhansukhbhai Lallubhai Surti v. State of Gujarat Through Secretary

2013-02-12

S.G.Shah, Vijay Manohar Sahai

body2013
Judgment S.G. Shah, J.—Learned Advocate for both the parties have requested to take up this appeal for final disposal. Hence the appeal is admitted and taken up for final disposal. Ms. Krina Calla, learned AGP waives service of notice of admission. 2. The order dated 13/12/2010 passed by the learned Single Judge in Special Civil Application No. 15461/2010 is under challenge in this appeal, mainly because of the following order: “. . . . . . . Hence, it will be in the interest of justice to direct the Collector, Surat to recover rent for the area on which the petitioners have entered illegally after the possession was taken by the Government in the year 1995 at the market rate. Rent should be determined year-to year basis and it should be recovered with interest at the rate of 12% til the date of recovery. In case it is required, this amount be recovered as arrears of land revenue.” 3. Heard learned Advocate Mr. Ramnandan Singh for the appellants and Ms. Krina Calla, learned AGP for the respondents. 4. By an order dated 7/2/2011 it was made clear that the matter may be disposed of at the stage of admission and interim relief was refused. By order dated 19/4/2012 and 23/1/2013 it was directed to the respondents to call upon the original record pertaining to the land under dispute. Perused the record of the Court as well as original record brought by the concerned Officer of the respondents. 5. Though there is no indication, the record was called upon for confirmation of possession being taken by the Government in the year 1995, since it is argued by the learned advocate for the petitioners that signatures on some blank papers were taken at the relevant time and possession receipt was accordingly manipulated. We do not find any substance in such submission. On the contrary, both records confirmed that the possession of the land in question was taken by the Mamlatdar, Urban Land Ceiling, Surat, on 14/7/1995 from Chimanbhai Ranchhodbhai Surti, who is petitioner / appellant No. 2 in the present litigation. Such possession receipt-cum-statement dated 14/7/1995 – Annexure-R-IV at page 89 confirms that practically possession was given willfully without any hindrance. On the contrary, both records confirmed that the possession of the land in question was taken by the Mamlatdar, Urban Land Ceiling, Surat, on 14/7/1995 from Chimanbhai Ranchhodbhai Surti, who is petitioner / appellant No. 2 in the present litigation. Such possession receipt-cum-statement dated 14/7/1995 – Annexure-R-IV at page 89 confirms that practically possession was given willfully without any hindrance. In view of such confirmation, all other averments of the petitioners regarding possession comes to an end since it is settled legal position that possession by the Government authority may be symbolic and, therefore, if anybody enters into such property and holds such property, such holder cannot be treated as lawful holder and owner and may be termed as trespasser or unauthorized holder of the property in question. Since it being settled legal position, it does not require much discussion or reference to factual details and law point as well as decision on such aspect. The impugned order is also based upon such determination that possession of the excess vacant land was taken away by the Government in the year 1995 and, therefore, even if the petitioners have continued to be on the land and cultivated the land till filing of such litigation, they cannot be held as lawful holders or in lawful possession and owners of the land in question. 6. For such reasons, the learned Single Judge has directed to recover the rent from the petitioners. Such direction is reproduced in earlier part of this judgment. 7. However, learned advocate for the petitioners has vehemently argued that considering the factual details regarding possession, it could not be said that the Government has taken away the possession and to substantiate his argument and case, he has referred a cheque dated 31/3/2004, photocopy of which is produced at page 97 of the petition. Such cheque was issued by the respondent in favour of Lalubhai R. Surti; whereas said Lalubhai R Surti had expired on 22/7/2003 i.e. before the issuance of such cheque. Therefore, it is submitted that practically the respondents have never paid the compensation as per the order dated 29/4/1998, copy of which is produced at Annexure-E and, therefore, it is submitted that the petitioners are entitled to the reliefs, as prayed for. 8. Therefore, it is submitted that practically the respondents have never paid the compensation as per the order dated 29/4/1998, copy of which is produced at Annexure-E and, therefore, it is submitted that the petitioners are entitled to the reliefs, as prayed for. 8. However, as discussed hereinabove, the factum of taking away possession is very much clear since possession was taken in the year 1995 and petitioners have not taken any steps till the year 2010. Whereas on factual aspect, the Government is not admitting the possession of the respondents and it is made clear by their affidavit-in-reply that in fact the possession has been handed over to the Surat Urban Development Authority [SUDA] on 8/2/2000 by the Government and though the petitioners are aware about such fact, they have deliberately not joined SUDA as party since practically such authority is in possession. The affidavit-inreply is narrating the entire events date-wise. It is further stated that the father of the Petitioner No. 1 and other family members had not taken any objection at the relevant time, before 15 years when the land was considered as surplus and when possession was taken and when order of compensation was passed. 9. It is also settled legal position that whenever there is an issue regarding factual details, for which actual evidence is to be adduced by the party, the jurisdiction of the High Court under Article 226 or 227 of the Constitution is limited. In general, High Court has to verify the illegality, irregularity, unconstitutionality, discrimination, arbitrariness or impropriety of any action or non-action by the Government authorities. Wherever there is a dispute regarding factual details like possession, etc., it cannot be resolved in such writ petitions. However, so far as the payment of compensation as per order dated 29/4/1998 is concerned, again this controversy had arisen. On one hand, it is the say of the Government that the compensation has been received by the family members of the land owner Lalubhai R Surti, after his death; whereas it is the say of the petitioners that they have not received any compensation. 10. On one hand, it is the say of the Government that the compensation has been received by the family members of the land owner Lalubhai R Surti, after his death; whereas it is the say of the petitioners that they have not received any compensation. 10. In view of the above facts and circumstances, though the appeal is required to be dismissed on factual aspect so far as the possession and right over the land by the petitioners are concerned, so as to meet the ends of justice, it is necessary to clarify about the rent ordered to be recovered by the Collector and compensation whether paid by the respondents and received by the petitioners. 11. Therefore, this appeal is partly allowed only to the following extent: [i] The directions issued by the learned Single Judge in the impugned order dated 13/12/2010 as reproduced in Para 2 in this judgment, are hereby quashed and set aside. [ii] The respondents have to verify their record properly and to convey the petitioners the factum of payment of compensation with supporting documentary evidence as per order dated 29/4/1998, within four weeks from the date of receipt of this order by them. If amount of compensation as per order dated 29/4/1998 [copy of which is produced at Annexure-E to the petition] has not been paid in cash or in form of bond till filing of the Special Civil Application i.e. 19/10/2010, then the respondents have to pay such amount within four weeks with interest @ 9% p.a on such amount. The appeal stands disposed of with above directions. However, considering typical facts of the case, there is no order as to costs.