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2017 DIGILAW 593 (GUJ)

Tribhovan Industries v. State of Gujarat

2017-03-16

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Leave to amend the petition in terms of draft amendment dated 16.03.2017 is granted. Amendment to be carried out on or before 18.03.2017. 2. In present petition, the petitioner has prayed, inter-alia, that: "7(a) Records and proceedings of the case may kindly be called for from the Lower Courts and the judgment and order under Section 61 of The Bombay Land Revenue Code and orders passed by the Lower Courts, as regards Exh.5, may be reversed and this Special Civil Application may be allowed with costs of all the Courts and the said orders may be ordered to be quashed and set aside and this Special Civil Application may accordingly be allowed with costs throughout by issuing appropriate orders or writs. 7(aa) A writ of certiorari or any other appropriate writ, order or direction may kindly be issued quashing and setting aside the order passed by the respondent No. 2 in Encroachment Appeal No. 14 of 1999 dated 30.10.2000- Annexure-BB herein by allowing the appeal filed by the petitioner before the respondent No. 2, as prayed for." 3. 7(aa) A writ of certiorari or any other appropriate writ, order or direction may kindly be issued quashing and setting aside the order passed by the respondent No. 2 in Encroachment Appeal No. 14 of 1999 dated 30.10.2000- Annexure-BB herein by allowing the appeal filed by the petitioner before the respondent No. 2, as prayed for." 3. So far as the factual background is concerned, from the details mentioned in the petition, it has emerged that: "3(1) That in 1928, in Native State regime, cartway land on the west of Dolatpara SN 30, 31 and 32 was merged with these lands on laying down road across these lands from their middle and in the Tippan Copy of which is produced at Mark 4/2 in the suit, necessary Note has been made on the basis of Hazur Order No. 3282 dated 8.10.1928 duly signed by the State Mojnidar is made in the Tippan, text of which is to the effect that " on laying new road leading to Indreshwar across the lands of SN 30, 31 and 32 land of cart track adjoining to these lands which have become useless, are merged in these survey numbers in lieu of the land thus taken for laying the road as per Hazur Order No. 3282 dated 8.10.1928 and since then there remained no cartway land on the west of these three survey numbers and the said cartway was cancelled and, in the result, western border of these lands touched the land of SN 29 and there remained no other land between these lands SN 30, 31 and 32 and by this new road across these SN 30, 31 and 32, they were divided in two parts and the land of SN 21/1 was sold by its owner Shri Ravji Mohan to Maganlal Khimji Patel by sale deed dated 7.1.1984 and, on his application, NA permission for this land SN 31/1 A.1-03G was granted for using the same for business purpose by Junagadh District Panchayat by order dated 26.12.1985 and layout plan for this land was sanctioned by it and then Plot No. 1 thus made admeasuring about 835=80 Sq. Yds was sold by him to the Petitioner by sale-deed registered on date 22.07.1991 for consideration of Rs. 1,00,300/- and the Petitioner has then made construction for its business by getting building plan sanctioned and obtaining building permission. Yds was sold by him to the Petitioner by sale-deed registered on date 22.07.1991 for consideration of Rs. 1,00,300/- and the Petitioner has then made construction for its business by getting building plan sanctioned and obtaining building permission. (2) That thereafter, the Respondent No. 3 issued show cause notice under Section 61 of The Bombay Land Revenue Code to the Petitioner by registering Encroachment Case No. 3 of 1998-99, alleging encroachment of land admeasuring 235.50 sq. mts. of old cartway land of Government. A copy of this notice, Mark 4/3, is produced herewith and marks as Annexure-A. (3) That the Petitioner contested that case and denied the allegation in this notice and contended that the land regarding that case is registered as his private land purchased by him as aforesaid and superstructures are made thereon after getting necessary building permission and plan sanctioned. (4) That the Respondent No. 3, after trying that case, passed final order in that case on date 1.3.1999 without holding inquiry under Section 37(2) of The Bombay Land Revenue Code, hereinafter referred to as the Code, and held that the Petitioner has encroached upon Government land of SN 21 by his construction to the extent of 235.50 sq. mt and ordered removal thereof and imposed fine of Rs. 250/-. A copy of the substance of this order passed which came to be served upon the Petitioner, Mark 4/4, is produced herewith as Annexure-B. The Petitioner's appeal against that order failed and, therefore, the Petitioner challenged these orders by instituting Regular Civil Suit No. 58 of 2002 against the Respondents and prayed for declaration that there is no encroachment made by the Petitioner and sought necessary permanent injunction pointing out that without inquiry under Section 37(2) of the Code cannot be validity passed in the suit, the Petitioner preferred application Exh.5, for interim injunction which, on contest, came to be rejected by the Trial Court. A copy of this order is produced herewith as Annexure-C. (5) That the Trial Court had appointed Court Commissioner for local investigation, who made Rojkam on date 6-2-2002 and produced in the case at Mark 8/1, a copy of which is a produced herewith for ready reference as Annexure-D. In this Panchnama, there is clear mention that there is no cart way on west of the Petitioner's property right from Sakarbaug to Dolatpara. (6) That the Petitioner's appeal against the order of the Trial Court failed, copy of which is produced herewith as Annexure-E. Hence, Revision Application No. 361 of 2002 was preferred to this Hon'ble Court and Status Quo order was issued by this Hon'ble Court. But it came to be rejected by this Hon'ble Court finding that it is not competent in view of the amendment in The Civil Procedure Code and permission to prefer Special Civil Application came to be granted and interim relief is ordered to be continued for three weeks from date 23.09.2002. A copy of this order is produced herewith as Annexure-F." 4. From the submissions by learned advocate for the applicant and learned AGP, it has emerged that according to the Petitioner's claim the complete order dated 12.03.1999 passed by the Mamlatdar was not served to petitioner herein. 5. Therefore, the petitioner was handicapped to effectively frame his challenge against the order dated 12.03.1999. Nonetheless, so as to avoid delay in challenging the order dated 12.03.1999 and/or to avoid any other objection, the petitioner challenged the order dated 12.03.1999 before Revisional/appellate authority. 6. Feeling aggrieved by the order of Revisional/Appellate authority, the petitioner has taken out the present petition. 7. During the hearing of this petition, learned AGP has provided copies of the original record before the Authority. From the copies supplied by learned AGP it has emerged that the order of Mamlatdar which came to be served to present petitioner, was incomplete order and full context of the order was not served to the petitioner. 8. Under the circumstances, it appears that petitioner is justified in his contention that for want of complete order, he could not effectively frame his contention and his challenge against the order dated 12.03.1999 passed by the Mamlatdar and that he was deprived of effective opportunity before the Revisional/Appellate authority on account of service of incomplete order. 9. In this view of the matter, it appears that ends of justice would be met and it would be in fitness of thing if the petitioner is granted opportunity to raise appropriate contentions against the order passed by Mamlatdar before the Revisional/Appellate authority. 10. Even learned AGP could not dispute the fact that the copy of the order which was served to the petitioner was not complete. 10. Even learned AGP could not dispute the fact that the copy of the order which was served to the petitioner was not complete. This, of course, is on the assumption and bona-fide belief that the copy of the order which is placed at Annexure-B of this petition, is the only order which was served to the Petitioner. 11. In this view of the matter and in light of such factual background and on equitable consideration for substantial justice, following order is passed: "(a) The orders passed by the authorities and not the order/judgment by learned Civil Court are set aside and the proceedings are remanded to Deputy Collector for reconsideration of the revision/appeal filed by the present petitioner against order dated 12.03.1999 passed by the Mamlatdar. (b) It would be open to the petitioner to file supplementary memo in furtherance of relevant application/appeal filed against the order dated 12.03.1999 passed by the Mamlatdar. (c) The Deputy Collector, shall, thereafter consider the case of the petitioner herein and decide the matter afresh after granting opportunity of hearing to the petitioner herein. (d) The Deputy Collector will pass fresh speaking and reasoned order in accordance with law and after taking into account the material on record, however, without being influenced by the previous order. (e) With the aforesaid clarification the petition is partly allowed. Impugned orders are set aside. (f) It is clarified that the Court has not entered into merits of the order challenged in the present petition and this Court has not expressed any view with regard to orders impugned in the present petition. (g) It is further clarified that the impugned orders are set aside on limited grounds namely complete order by fresh adjudicating authority was not served to the petitioner and that, therefore, another opportunity is granted to the petitioner to prosecute his case before revisional/appellate authority namely Deputy Collector." 12. It is also clarified that by virtue of this judgment, the order passed by learned Civil Court in Civil Suit and/or Civil Misc. Application No. 9 of 2002 are not disturbed. 13. With the aforesaid clarification, the petitioner is partly allowed. Rule is made absolute to the aforesaid extent. Petition Partly Allowed.