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2017 DIGILAW 650 (GUJ)

Alibhai Bagasbhai Patel v. State of Gujarat

2017-03-22

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. R.K. Mishra, learned advocate for the petitioners and Mr. Mehta, learned AGP. 2. In present petition the petitioners have placed under challenge order dated 21.8.2007 passed by the learned Tribunal and the order dated 30.4.1998 and the communication dated 29.7.1968 as well as order dated 27.10.1997. While challenging the said orders the petitioners have prayed, inter alia, that:- "8(A) Your Lordships may be pleased to quash and set aside the order dated 21.8.2007 at Annexure-A passed by the Gujarat Revenue Tribunal, order of the Deputy Collector at Annexure-B dated 30.4.1998 (4.5.1968) and communication dated 29.7.1968 at Annexure-D and the order dated 27.10.1997 at Annexure-C to the petition. (B) Your Lordships may be pleased to hold and declare that the petitioners who are joint khatedar in Block Survey No. 235, situated at village Bhensavda, do have legal right of 1/3rd share each (both petitioners have 2/3rd ) of the land admeasuring 11 acres and 38 gunthas, therefore, the orders of the authorities are illegal, arbitrary and unconstitutional. (C) Your Lordships may be pleased to hold and declare that the action on the part of the respondent authorities of not issuing the statutory notices, is illegal, arbitrary, unconstitutional, being violative of Articles 14, 19 and 21 of the Constitution of India. (D) Your Lordships may be pleased to hold and declare that the action of the respondent authorities is in breach of Section 20 and 22 of the Gujarat Agricultural Land Ceiling Act, 1960 and the same being without authority of law, being illegal, arbitrary and unconstitutional. (E) Your Lordships may be pleased to hold and declare that the action on the part of the respondent authorities to be violative of Article 21 of the Constitution of India as right to livelihood includes right to life and the action on the part of the respondent authorities taking away the livelihood without following the procedure established under the Gujarat Agricultural Land Ceiling Act, 1960 to be illegal, arbitrary and unconstitutional." 3. So far as learned Tribunal's order is concerned, learned Tribunal, vide order dated 21.8.2007, dismissed the Revision Application No. 14 of 1999 filed by present petitioners observing, inter alia, that the petitioners challenged order dated 9.7.1968 after almost 20 years (i.e. in 1999) and that therefore, the proceedings are obviously time barred. So far as learned Tribunal's order is concerned, learned Tribunal, vide order dated 21.8.2007, dismissed the Revision Application No. 14 of 1999 filed by present petitioners observing, inter alia, that the petitioners challenged order dated 9.7.1968 after almost 20 years (i.e. in 1999) and that therefore, the proceedings are obviously time barred. With such observations and further findings the learned tribunal rejected the revision application filed by present petitioners. Feeling aggrieved by said order and other previous orders the petitioners have taken out present petition. 4. So as to appreciate the challenge against the impugned orders raised by the petitioners it is appropriate and necessary to take into account factual background. 4.1 From the submissions by advocate for the petitioners and learned AGP and from the details mentioned in the petition as well as from the factual background discussed in the impugned orders it has emerged that the petitioners' father was owner of certain agriculture land. Some part of the land came to be declared surplus under the provisions of Gujarat Agricultural Lands Ceiling Act, 1960 (hereinafter referred to as the "Act"). An order to the said effect was passed on 9.7.1968. Thereafter vide communication dated 29.7.1968 father of the petitioners was informed that he should intimate the choice/selection of the land which he would like to retain. 4.2 It appears that even after said communication dated 29.7.1968 the father of the petitioners did not inform the competent authority about his choice/selection of land which he would like to retain. 4.3 Thereafter for almost 20 years any steps were not taken by the petitioners or their father against the order dated 9.7.1968 and/or communication dated 29.7.1968. 4.4 About 20 years thereafter the petitioner filed Special Civil Application No. 3792 of 1997. The said petition came to be unconditionally withdrawn by the petitioner on the ground that he would like to make representation to the Mamlatdar. Therefore the Court disposed of the said petition vide order dated 8.8.1997. The said order dated 8.8.1997 reads thus:- Heard Mr. Naik for the petitioner and Mr. Bukhari for the respondent. After the matter was heard for some time, Mr. Naik seeks to withdraw this petition with a view to make a representation to the Mamlatdar and other authorities. Therefore the Court disposed of the said petition vide order dated 8.8.1997. The said order dated 8.8.1997 reads thus:- Heard Mr. Naik for the petitioner and Mr. Bukhari for the respondent. After the matter was heard for some time, Mr. Naik seeks to withdraw this petition with a view to make a representation to the Mamlatdar and other authorities. From the petition, as it is presented, no such representation had been filed expressing any apprehension to any of the authorities before filing of this petition and now it is sought to be filed. The petition is therefore dismissed as withdrawn. The order of status quo is vacated. Notice is discharged." 4.5 It has emerged that until the petitioner filed said petition any steps with reference to the order dated 9.7.1968 and/or intimation dated 29.7.1968 were not taken by the petitioner. 4.6 However after withdrawing the petition the petitioner seems to have submitted application/representation to the Mamlatdar on or around 26.9.1997. 4.7 The Mamlatdar considered the said application and found that the petitioner has sought to raise dispute with regard to order dated 9.7.1968 passed by the Mamlatadar & ALT and that such dispute, with reference to order passed almost 20 years before, would not be maintainable the Mamlatdar & ALT rejected the said application vide order dated 27.10.1997 and informed the petitioner that such highly and inordinately delayed application raising dispute with regard to order dated 9.7.1968 cannot be considered. 4.8 Against said order/communication dated 27.10.1997 by the Mamlatdar & ALT the petitioner herein filed Appeal/revision before the Deputy Collector which was registered as Ceiling Appeal No. 1/98. The deputy Collector after hearing the petitioner and considering the material available on record and after dealing with the contention raised by the petitioner passed detailed and reasoned order dated 30.4.1998 and rejected the appeal filed by the petitioner inter alia, on the ground that the Appeal was filed after inordinate and unreasonable delay of more than 20 years. 4.9 Feeling aggrieved by the said order the petitioner approached learned Revenue Tribunal by way of Revision Application No. 14 of 1999. Learned Tribunal considered revision application and considered the submissions by the petitioner and dismissed the revision application vide order dated 21.8.2007. In paragraph No. 5 of the order learned Tribunal recorded, inter alia, that:- "5. I have carefully considered the arguments advanced at the bar. Learned Tribunal considered revision application and considered the submissions by the petitioner and dismissed the revision application vide order dated 21.8.2007. In paragraph No. 5 of the order learned Tribunal recorded, inter alia, that:- "5. I have carefully considered the arguments advanced at the bar. Admittedly the order dated 9.7.68 is sought to be a challenged in the year 1999 i.e. after the lapse of about 20 years. The perusal of the case file of learned Dy. Collector shows that by mutation entry No. 1674 dated 10.1.77 the opponent No. 4 society has been allotted the suit land. From the case file it further transpires that by mutation entry No. 1461 dated 12.8.68 the suit land was ordered to be declared as surplus land and the order of the said ceiling case No. 6/62 has been mutated. This mutation entry at p. 59 on the case file also shows that there is a stay of civil court and therefore the entry should not be certified. At p. 71 there is another mutation entry No. 1666 dated 11.5.76 by which the suit land has been mutated in the name of government with the recital that the applicant had filed a civil suit in the court of learned Civil Judge (S.D.) Himatnagar but the said suit has been dismissed by judgment and decree dated 19.12.75 and therefore land is entered in the name of government. Therefore it transpires that applicants or deceased Alibhai had knowledge of the order dated 9.7.68 passed by Mamlatdar & ALT. It transpires that even thereafter also when the possession was sought to be recovered from them they have approached the Hon'ble High Court thrice and therefore I agree with the contention raised on behalf of the state that the revision application is clearly time barred and has been filed with some ulterior motive." 4.10 Before reaching to the said conclusion and recording the said findings and observations, learned tribunal considered the submissions raised by the petitioners as well as the factual background and details mentioned by the petitioners. The said details as well as submissions by the learned advocate for the present petitioners i.e. revisionists and the learned Addl. SGP are also recorded by the learned Tribunal. 4.11 In view of the dispute raised by the petitioners it is relevant to take into account the said observations by the learned Tribunal in paragraph Nos. 2 to 4. The said details as well as submissions by the learned advocate for the present petitioners i.e. revisionists and the learned Addl. SGP are also recorded by the learned Tribunal. 4.11 In view of the dispute raised by the petitioners it is relevant to take into account the said observations by the learned Tribunal in paragraph Nos. 2 to 4. the said paragraph Nos. 2 to 4 read thus:- "2. It transpires that ceiling case was conducted by Mamlatdar & ALT, Dhansura perhaps in the year 1968. In the said ceiling case Ibrahimbhai Bagasbhai i.e. father of opponent No. 1/1 to 1/5 was the agricultural land holder. It transpires that by order dated 9.7.68 (the case was conducted under old ceiling Act) Ac. 164-29gs of agricultural land held by said Ibrahimbhai was declared as surplus land. Mamlatdar & ALT while declaring surplus land by intimation dated 29.7.68 included the land Sr. No. 235 admeasuring Ac. 11-38gs of village Bhesawada along with other lands of village Dhansura and village Bhesawada. It transpires that the applicant's herein claims to be the 2/3rd co-sharer of said Sr. No. 235 admeasuring Ac. 11-38gs. It further transpires that thereafter the applicant did not take any step against the said order but after the lapse of 29 years the applicant approached Hon'ble High Court of Gujarat by way of Special Civil Application against the said order of declaring Sr. No. 235 as surplus land. The said Special Civil Application was withdrawn and was dismissed as withdrawn by order dated 8.8.97. It further transpires that the applicant submitted an application dated 26.9.97 to Mamlatdar & ALT to reconsider the order dated 9.7.68 which was rejected by him on 27.10.97. It further transpires that against this order the applicants preferred ceiling appeal No. 1/98 which came to be dismissed by order dated 30.4.98 by learned Dy. Collector. It further transpires that thereafter the applicants again approached Hon'ble High Court by filing SCA No. 5678/98 which came to be dismissed by order dated 8.10.98 and thereafter the present revision application has been preferred on 6.1.99. 3. Shri K.I. Sagar, learned advocate for the Applicants vehemently argued that the order declaring Sr. No. 235 is illegal because the applicants have 2/3rd share in the said land and deceased Ibrahimbhai had only 1/3rd share and therefore this 2/3rd share could not have been declared surplus. 3. Shri K.I. Sagar, learned advocate for the Applicants vehemently argued that the order declaring Sr. No. 235 is illegal because the applicants have 2/3rd share in the said land and deceased Ibrahimbhai had only 1/3rd share and therefore this 2/3rd share could not have been declared surplus. He further argued that the orders vested for another land Sr. No. 233 paiki admeasuring Ac. 3.37gs therefore according to this appears to be a typographical mistake and in fact this area of Ac. 3-37gs should be of Sr. No. 235. He further submitted that even according to the provisions of the Act the land which requires to be declared surplus should be free from all encumbrances. When the applicants are having 2/3rd share in Sr. No. 235 such land could not have been declared surplus. 4. Shri J.C. Shah, learned Addi. SGP for the State supported the order arguing that the revision application is hopelessly time barred and there are no merits therein. He further submitted that this surplus land has been allotted to opponent No. 4 a cooperative Housing Society in the year 1977 as per the government record and therefore also now the claim of the applicants cannot be entertained." 5. Now the petitioners have challenged said orders in present petition. 5.1 When this Court inquired from the petitioners about the ground on which they challenged the order, learned Counsel for the petitioners, for the first time during this entire string of proceedings, raised the contention that the order dated 9.7.1968 was not served to the petitioners. From the record it has emerged that the said allegation was never made and the said contention was never raised before any authority and in any proceedings and it is raised for the first time while arguing this petition. 6. In view of the said submission by learned advocate for the petitioners this Court asked Mr. Mishra, learned advocate for the petitioners to point out from the memo of the application and/or appeal or from the orders as to whether the said contention was ever raised before any of the authorities before raising said contention during final hearing i.e. today. In view of the said submission by learned advocate for the petitioners this Court asked Mr. Mishra, learned advocate for the petitioners to point out from the memo of the application and/or appeal or from the orders as to whether the said contention was ever raised before any of the authorities before raising said contention during final hearing i.e. today. 6.1 This Court repeatedly asked the said question to the learned advocate for the petitioners however learned advocate the petitioners could not show from entire record i.e. either from the application filed by the petitioners before Mamlatdar or from the proceeding which was filed by the petitioners i.e. Special Civil Application No. 3792 of 1997 or from the revision application filed by the petitioners or from the Appeal filed by the petitioners before the Deputy Collector, that the allegation that order dated 9.7.1968 was not served to the petitioners was ever raised and that such contention was mentioned/raised in any application/appeal before any authority. 6.2 Even from the order passed by the Mamlatdar or Deputy Collector or learned Tribunal, the petitioners could not show that the such contention was raised by the petitioners even during hearing, though not in the memo of petition or appeal or revision application. Thus, even in memo of the petition also such contention was not raised by the petitioners. 7. Even if, it is assumed, only for sake of testing contention of the petitioners, that there is any substance in the said allegation then also the fact remains that after order dated 9.7.1968 the authorities had forwarded another communication dated 29.7.1968 to the father of the petitioners and asked him to inform his choice/selection for the land which he would prefer to retain. 7.1 However, any response and reply to the said communication dated 29.7.1968 was not given. The petitioners could not demonstrate and could not establish that any response in reply to said communication was given. 7.2 Not only that at that stage also any grievance or contention was not raised on the ground that any order dated 9.7.1968 is not received. 7.3 It is not the case of the petitioners that the address mentioned in the communication dated 29.7.1968 is not correct. 7.4 Any statement in the application or appeal is not made by the petitioners stating that both communications i.e. order dated 9.7.1968 and 29.7.1968 were not served to the petitioner. 8. 7.3 It is not the case of the petitioners that the address mentioned in the communication dated 29.7.1968 is not correct. 7.4 Any statement in the application or appeal is not made by the petitioners stating that both communications i.e. order dated 9.7.1968 and 29.7.1968 were not served to the petitioner. 8. When such statement is not made even in the petition, beside the fact that any such statement is not made in any other application before adjudicating authority, the submissions cannot be accepted at such belated stage in present petition which is filed in 2007 i.e. almost after 40 years. 9. In this background the petition does not deserve to be entertained for the reason that the petition is filed against three concurrent orders and the petitioners initiated the dispute against the orders passed in July 1968 after almost 20 years and such belated grievance cannot be entertained and that therefore orders passed by the Mamlatdar and/or Deputy Collector and/or learned Tribunal do not warrant any interference. 10. Beside the said two reasons there is another reason also which compels the Court to hold that the petition does not deserve to be entertained. 10.1 In this context it is necessary to mention that as back as in 1998 the land or part of land in question was, after having declared surplus allotted to Sahakari Mandali (Cooperative Society). From the resolution No. 4 dated 10.8.1998 passed by the said society it appears that land was allotted to the society and the society was cultivating the said land. 10.2 Thus, after conclusion of the proceedings under the Ceiling Act when the land came to be allotted to other party and at that time also the petitioners never took any action and at that stage the petitioners did not raise any objection, now the grievance, which came to be raised after 20 years would not be maintainable and it cannot be said that authorities committed any mistake in not entertaining such abnormal and delayed proceedings. 11. Besides above mentioned aspects certain aspects which emerged from the affidavit filed by the respondent No. 2 i.e. Deputy Collector are also relevant to be taken into account. 11.1 In the said affidavit the deponent Deputy Collector has averred and stated that:- "6. 11. Besides above mentioned aspects certain aspects which emerged from the affidavit filed by the respondent No. 2 i.e. Deputy Collector are also relevant to be taken into account. 11.1 In the said affidavit the deponent Deputy Collector has averred and stated that:- "6. It is further stated that it appears from the records that by virtue of order dated 09.07.1968, the Mamlatdar & ALT, has declared 164 Acres and 29 Ghunthas as excess vacant land and taken over by the State Government and the same has been mutated into revenue records by virtue of Mutation Entry No. 1666 dated 11.05.1976 and Mutation Entry No. 4252 dated 31.07.1968. 7. It is further stated that at the time of declaring land as excess land, there are two parcels of land, whereby one parcels of land is of Mouje : Dhansura and another parcels of land is of Mouje : Bhensawada. 8. It is further stated that it appears from the records that the concerned lands of Mouje: Bhensawada and Dhansura, have been granted to Dhansura Samudayik Agriculture Sahkari Mandli Dhansura, Dist. Sabarkantha and the same has been mutated into the revenue records by virtue of the Mutation Entry No. 1674 dated 10.01.1977 and Mutation Entry No. 5393 dated. 3.11.1976 whereby orders dated 22.07.1976 and 30.11.1976 have been taken into the account. 9. It is further submitted that even at the relevant point of time, whereby the concerned lands have been vested with the State Government, said concerned lands have been allotted to Dhansura Samudayik Agriculture Sahkari Mandli Dhansura, Dist. Sabarkantha and later on due to the breach of conditions, the same have been forfeited and again taken back into the hands of State Government and this very fact is clearly being reflected in revenue records being Mutation Entry No. 2757 dated 11.08.2003. 10. It is further stated that it appears from the records that thereafter Ahmedbhai Alibhai has preferred petition before this Hon'ble Court by virtue of Special Civil Application No. 3792 of 1997 whereby, by virtue of the order dated 08.08.1997, the said matter has been withdrawn by the petitioner therein. 11. It is further stated that it appears from the records that thereafter representation has been made before the concerned authority being Mamlatdar and ALT, Modasa by virtue of representation dated 26.09.1997 and by virtue of Communication dated 27.10.1997, the same has been 'filed'. 13. 11. It is further stated that it appears from the records that thereafter representation has been made before the concerned authority being Mamlatdar and ALT, Modasa by virtue of representation dated 26.09.1997 and by virtue of Communication dated 27.10.1997, the same has been 'filed'. 13. It is further stated that the petitioners have suppressed the fact that they have preferred the Special Civil Application before this Hon'ble Court by virtue of Special Civil Application No. 5678 of 1998, whereby the petitioner had also prayed for quashing and setting aside the order dated 09.07.1968 as well as order dated 30.04.1998 and 04.05.1998 passed by the Deputy Collector. 15. It is further stated that it appears from the records that thereafter the Revision Application has been preferred being Revision Application No. 14 of 1999, the petitioners have approached before the Gujarat Revenue Tribunal and by virtue of the order dated 21.08.2007, the said revision application has been rejected on merits as well as ground of the delay. 16. It is further submitted that as such the petitioners are praying for the quashing and setting aside the order dated 09.07.1968, almost after 39 years, certainly every time with the usage of the different words in prayer clause and the present petition is required to be dismissed on the ground of delay. 17. It is further stated that the present petition is required to be dismissed also on the ground of suppression of material facts from this Hon'ble Court, whereby in the petition, the petitioner has not revealed the fact that petitioner has approached before this Hon'ble Court by preferring Special Civil Application No. 5678 of 1998 as well as the petitioners are also silent in the petition that 'some' Civil Suit has been rejected on 09.12.1975 and these very crucial aspects have been suppressed from this Hon'ble Court and only on the ground of suppression of material facts from this Hon'ble Court, the present petition is required to be dismissed and it is well settled principle of law that when the petitioners are not approaching before this Hon'ble Court with clean hands and suppressing the material facts from this Hon'ble Court, the petition is required to be dismissed. 18. 18. It is further submitted that as such this is third round of litigation before this Hon'ble Court and at every time with different words, the petitioners or the concerned persons are praying for the quashing and setting aside the order dated 09.07.1968 passed by the Mamlatdar whereby certain parcels of land declared as excess land and directed to be vested in the State Government free from all encumbrances. 19. It is further submitted that the petition is also hit by principles of res judicata, whereby more or less, similar, nature of prayers have been prayed before this Hon'ble Court and again with the usage of different words in the prayer clause of present petition, the petitioners are praying for the same relief and ultimately with the goal to quash and set aside the order dated 9.7.1968, whereby certain parcels of land have been declaring as excess land." 11.2 Of course, the petitioners have filed rejoinder affidavit opposing the said affidavit. However, any material in support of the denial in the rejoinder is not placed on record. 12. When overall view of above mentioned facts and circumstances of the case are taken into account this Court finds that the petitioners have failed to make out any ground against 3 concurrent orders challenged in present petition i.e. concurrent decision by the Mamlatdar, Deputy Collector and the learned Tribunal. 12.1 The petitioners have also failed to point out that at any stage including the petition, any contention that the order was not received by the petitioners or his father was ever raised at any stage and/or that at the time when land was allotted to the society any objection was raised. 13. Under the circumstance, it cannot be said that the authorities committed mistake in dismissing the dispute raised by the petitioners about 20 years after original order came to be passed. In the facts and circumstances of the case, the petition deserves to be rejected and accordingly the same is hereby rejected. Rule discharged. 14. At this stage, Mr. Mishra, learned advocate for the petitioners submitted that interim relief is in operation since December 2009 and that therefore the possession of the land in question, which is with the petitioners may be protected. He submitted that the said relief be continued so as to enable the petitioners to carry this order in Appeal. 14. At this stage, Mr. Mishra, learned advocate for the petitioners submitted that interim relief is in operation since December 2009 and that therefore the possession of the land in question, which is with the petitioners may be protected. He submitted that the said relief be continued so as to enable the petitioners to carry this order in Appeal. Having regard to the fact that interim relief is in operation since 2009, the request by the learned advocate for the petitioners appears to be justified and that therefore it is directed the operation of the interim relief granted vide order dated 22.12.2009 will continue until 30.6.2017. Orders accordingly. Petition Dismissed