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2018 DIGILAW 1235 (GUJ)

Narendrabhai Maganbhai Patel v. State of Gujarat

2018-11-27

RAJESH H.SHUKLA

body2018
JUDGMENT : RAJESH H. SHUKLA, J. 1. Present petition is filed by the petitioner under Articles 14, 21, 226 and 227 of the Constitution of India as well as under the Gujarat Land Revenue Code, 1879 for the prayers as prayed for inter alia that appropriate writ, order or direction may be issued quashing and setting aside the order passed by the Secretary(Appeals), Revenue Department, dated 31.01.2000 at Annexure-N confirming the order passed by the Prant Officer, Gandhinagar at Annexure-L. It has also been prayed that the order passed by the Prant Officer dated 30.04.1997 may be declared to be illegal and quashing and setting aside the proceedings under the case No. PO/T.D./APPEAL/SR. 09/2014 filed before the Prant Officer, Gandhinagar, at Annexure-T on the ground stated in the memo of petition. 2. The facts of the case briefly summarized are as follows: 2.1. The land in question bearing survey no. 119(old) now 118 was owned by one Bhikhabhai Fakirbhai Patel. After demise of Shri Fakirbhai, the names of the heirs of Bhikhabhai Fakirbhai Patel was mutated by entry no. 275. Thereafter, the application was made by Bhikhabhai Fakirbhai for formation of the Co-operative society and in 1997 order for consolidation of the land of village:Kudasan was made when Bhikhabhai Fakirbhai Patel passed away in 1979. Thereafter, the heirs of Bhikhabhai Fakirbhai i.e. Surajaben Wd/o Bhikhabhai Fakirbhai and Dhuliben Bhikhabhai were mutated and it was certified by entry no. 1525 on 30.10.1979. However, the land was sold by the heirs of Bhikhabhai Fakirbhai to one Shri Harijanbhai Dahyabhai by a registered sale deed dated 26.03.1980. The application was given by widow on the same day that it is cultivated by her and the entry no. 1396 was mutated. Thereafter, in 1986, the proceedings were initiated by said Dhuliben after six years of the sale, filed Fragmentation Case No. 446 of 1986, which came to be decided on 30.04.1997 by respondent No. 3. However, in between, the two sale transactions took place and one Dahyabhai Madhabhai Patel, who purchased the land sold to one Shankarbhai Babubhai Patel. Therefore, in light of the circular that the land of Village:Kudasan may be deleted from the fragmentation and the mutation entry no. 2089 was made. However, in between, the two sale transactions took place and one Dahyabhai Madhabhai Patel, who purchased the land sold to one Shankarbhai Babubhai Patel. Therefore, in light of the circular that the land of Village:Kudasan may be deleted from the fragmentation and the mutation entry no. 2089 was made. Thereafter, after 11 years, the order came to be passed in Fragmentation Case No. 446 of 1986 at Annexure-L. The petitioner, who had purchased the land by registered sale deed, an entry no. 4902 was made and therefore, when the petitioner made an application for NA permission, said Dhuliben raised the objection leading to the impugned order passed by the authority. 3. Heard learned Senior Counsel Shri Anshin Desai appearing with learned advocate Shri Rohan A. Shah for the petitioner, learned AGP Shri Manan Mehta for respondent No. 1 and learned advocate Shri Nilesh A. Pandya appearing with learned advocate Shri Amrish K. Pandya for respondent No. 5. 4. Learned Senior Counsel Shri Anshin Desai referred to the long history and number of transactions and submitted that the Civil Suit No. 89 of 2013, it has been instituted belatedly in April, 2013 challenging the sale deed is nullified the transaction. He referred to the papers and submitted that the Prant Officer by order dated 30.04.1997 sought to raise an issue as to why the entry was made and the order of 30.04.1997 was not challenged till 2008. However, after long lapse of about 10 years, such issues are raised in the revenue proceedings to nullify the order of the civil court. He submitted that the Suit No. 89 of 2013 filed by Dhuliben has been rejected under Order 7, Rule 11. He, therefore, submitted that by way of such proceedings before the Revenue Authority, the harassment has been caused and the impugned order, which has been passed, is misconceived and without examining the relevant material and background of the facts. He, therefore, submitted that the present petition may be allowed. 5. Learned advocate Shri Nilesh Pandya appearing with learned advocate Shri Amrish Pandya for respondent No. 5 submitted as there is violation of Fragmentation Act, the order came to be passed by the Prant Officer. It was submitted that notice was issued to the petitioner and others and the reliance was placed on the order of the Prant Officer dated 30.04.1997. Learned advocate Shri Nilesh Pandya appearing with learned advocate Shri Amrish Pandya for respondent No. 5 submitted as there is violation of Fragmentation Act, the order came to be passed by the Prant Officer. It was submitted that notice was issued to the petitioner and others and the reliance was placed on the order of the Prant Officer dated 30.04.1997. Therefore, again the present petition in the year 2015 is not justified and may not be entertained. Therefore, learned advocate Shri Nilesh Pandya strenuously submitted that the petitioner has to satisfy the authority and the petitioner may not be allowed to cut short the procedure. He submitted that the matter may be remanded for afresh decision by the Secretary, Revenue Department. He submitted that the order passed under Order 7, Rule 11 has not been challenged and the matter was remanded to the Secretary, who has passed the order is void ab initio, it could be examined. In support of his submission he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Municipal Corporation of Greater Bombay V/s. Industrial Development Investment Co. Pvt. Ltd. & Ors., reported in 1996 (11) SCC 501 , and emphasized the observation made in para-29 that: "It is thus well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration." 6. Learned AGP Shri Manan Mehta referred to the prayers and pointedly referred to the prayer made in the petition and submitted that the order passed by the Secretary dated 31.01.2000 is challenged in the present writ petition in the year 2015 for which there is no explanation. He has also referred to the papers and submitted that the notice under the Fragmentation Act has been issued and it is challenged by the petitioner. He referred to page no. 84 and the order passed in Special Civil Application No. 7627 of 2001 and submitted that it was dismissed. Therefore, the order of the Secretary had remained confirmed. He has also referred to the papers and submitted that the notice under the Fragmentation Act has been issued and it is challenged by the petitioner. He referred to page no. 84 and the order passed in Special Civil Application No. 7627 of 2001 and submitted that it was dismissed. Therefore, the order of the Secretary had remained confirmed. He submitted that therefore, the petitioner has no right to challenge the same order again and again. He has also referred to the application made under Order 7, Rule 11 and the order passed therein and submitted that the entry has been made by maneuvering with the authority. 7. Learned Senior Counsel Shri Anshin Desai appearing with learned advocate Shri Rohan Shah for the petitioner again referred to the judgment of the Full Bench of the High Court, reported in 2011 (0) GLHEL-HC 225648 and emphasized the observations made in para-26 that: "Article 226 of the Constitution is an equitable extraordinary jurisdiction, it should be exercised to prevent preparation of legal fraud and to promote good faith and honesty. It cannot be exercised in favour of a defaulting party to frustrate legitimate claim of the other party [AP State Financial Corporation, (1994) 2 SCC 674]. 8. In view of the rival submissions and the chequered history as recorded hereinabove, it is required to be considered whether the present petition deserves consideration. 9. As could be seen from the background of the facts, respondent No. 5 has been pursuing the litigation one after the another as an abuse of process of court after having sold the land in question by registered sale deed. It is required to be stated that respondent No. 5 had earlier filed a petition being Special Civil Application No. 10388 of 2017 challenging the order passed by SSRD. The SSRD rejected the Revision Application No. 3 of 2015 on the ground that the petitioner has challenged the earlier order dated 30.04.1997 before the High Court by way of Special Civil Application No. 4796 of 2015, which is pending. It is required to be stated that thereafter, the another petition being Special Civil Application No. 10388 of 2017 was also withdrawn. It is required to be stated that thereafter, the another petition being Special Civil Application No. 10388 of 2017 was also withdrawn. It is required to be recorded that earlier the Fragmentation Case No. 446 of 1986 against the petitioner and all the three subsequent purchasers had been initiated and the order dated 30.04.1997 came to be passed on the ground that such transactions are in violation of provisions of Sections 7 and 8 of the Fragmentation Act. Thereafter, SSRD also rejected the revision application upholding the order of respondent No. 3-Prant Officer. However, thereafter, the last purchasers (1) Melaji Popatji Thakore, (2) Rameshji Popatji Thakore and (3) Rajendraji Popatji Thakore challenged the order passed by respondent No. 3 by way of Special Civil Application No. 7627 of 2001 and it was remanded. Again, the Fragmentation Case No. 42 of 1990 regarding the sale between the first purchaser Dahyabhai and second purchaser Shankerbhai was initiated and it was held that the land was piyat land and Fragmentation Act would not be attracted and therefore, the sale is valid. Therefore, the order passed by the SSRD earlier was challenged before the High Court by way of Special Civil Application No. 7627 of 2001 and interim relief was granted therein and later on, it was confirmed. However, as stated above, Special Civil Application was dismissed for want of prosecution and subsequently, it was disposed of. At the same time, the fact remains that respondent No. 5-Dhuliben filed a Special Civil Suit No. 89 of 2013 before the 7th Additional Senior Civil Judge, Gandhinagar after the Special Civil Application No. 7627 of 2001 was disposed of for want of prosecution and therefore, the subsequent purchaser respondent No. 11 filed an application for rejection of plaint under Order 7, Rule 11 and the mutation entries came to be passed, which led to the further revision application by respondent No. 5 against the order of Deputy Collector and Collector, Gandhinagar and also before the SSRD. However, the SSRD also rejected the revision application on the ground that the petitioner has challenged the order dated 30.04.1997 before the High Court by way of Special Civil Application No. 4796 of 2015 which is pending. However, the SSRD also rejected the revision application on the ground that the petitioner has challenged the order dated 30.04.1997 before the High Court by way of Special Civil Application No. 4796 of 2015 which is pending. It is required to be stated that respondent No. 5-Dhuliben, therefore, has been litigating and in fact in 1986, she had initiated the proceedings after six years of the sale deed executed by her. Therefore, the SSRD vide order dated 18.03.2015 disposed of the application of respondent No. 5-Dhuliben on the ground that the proceedings before the Prant Officer as well as the SSRD are regarding the Fragmentation Act and there is no justification to interfere with the order passed by the Collector. On that basis, again, the Prant Officer while deciding the fragmentation proceedings under Case No. PO/T.D./Appeal/SR. 09/2014 passed the order produced on record at Annexure-Z/2. It has been clearly observed referring to the background of the facts that the applicant therein i.e. respondent No. 5-Dhuliben has no locus standi having sold the land and therefore, disposed of the same with specific detail about the certification of the entries made regarding the subsequent transactions as well as sequence of events. 10. It is in these circumstances, again when the respondent No. 5 pursuing the proceedings by way of Fragmentation Case No. 446 of 2018 before the Prant Officer, who accepted that transaction is violation of Fragmentation Act and thereafter, further proceedings by way of fragmentation proceedings under Case No. PO/T.D./Appeal/SR. 09/2014 at Annexure-D cannot be sustained and the order was passed confirming the order dated 30.04.1997 passed by the Prant Officer, Gandhinagar and/or fragmentation proceedings under Case No. PO/T.D./Appeal/SR. 09/2014 would not survive. It is required to be stated that the Hon'ble Division Bench of the High Court in a judgment reported in 2003 (1) GLR 562 has in similar circumstances made the observation reflecting on the attitude of the vendor-original owner that he cannot be permitted to adopt the policy of dog in a manger to extract more money. It is required to be stated that the Hon'ble Division Bench of the High Court in a judgment reported in 2003 (1) GLR 562 has in similar circumstances made the observation reflecting on the attitude of the vendor-original owner that he cannot be permitted to adopt the policy of dog in a manger to extract more money. The Hon'ble Division Bench has made following observation: "...A bare perusal of the record clearly shows that even if the competent authority has come to conclusion that there is no breach of the provisions of the Act, legal heirs of the transferor who are appellants herein are desirous to see that the litigation continues for one reason or other even though the transferor has accepted the consideration and the transferor might have made the transferee believe that the transaction was in accordance with law. We are of the view that the legal heirs of the original transferor cannot be heard to say that they are entitled to benefit of such transaction which was opposed to law, more particularly, when it is a case of voluntary sale At this stage, we find that equitable considerations are against the appellants and prima facie it appears that the appellants want to use the process of law with a view to take undue benefit by contending that the transaction of voluntary sale was void or was opposed to law. During the period of 16 years not a single whisper is made by the appellants or the transferor regarding any infirmity or illegality in the sale, but at the stage when the Deputy Collector withdrew the notice the appellants want to take undue benefit of such proceedings even though the limitation for filing suit for such relief under Law of Limitation has expired. We are of the view that the instant case is nothing but clear misuse and abuse of process of law and we agree with the view taken by the learned single Judge while dismissing the petition..." 11. In the facts of the case, the same attitude is adopted by the original vendor or the heirs of the original owner respondent No. 5-Dhuliben which cannot be permitted. In the facts of the case, the same attitude is adopted by the original vendor or the heirs of the original owner respondent No. 5-Dhuliben which cannot be permitted. Further, another Division Bench in a judgment reported in 2011 (3) GLR 2472 has made following observation: "...Seller or the original owner cannot be permitted to say that the transaction was in breach of provisions of Act as he cannot take advantage of his own wrong..." 12. A useful reference can also be made to the observations made by Hon'ble Division Bench in a judgment in case of Dashrathlal M. Patel Heirs & L.R. Maganbhai Joitaram V/s. State of Gujarat, reported in 2011 (0) GLHEL-HC 225648 referring to the same issue with regard to the transaction being in violation of Fragmentation Act and the exercise of discretion under Article 226 of the Constitution of India. It has been observed and quoted as under: "...a court of equity when exercising its equitable jurisdiction under Article 226 must so act as to prevent perpetration of a legal fraud and the Court are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.." 13. As stated above, the respondent No. 5 having filed a suit and trying to make issue in such proceedings before the revenue authority without challenging to the registered sale deed and the orders passed by the authority cannot be sustained. Moreover, while considering Section 9 of the Fragmentation Act, the Hon'ble Division Bench in a judgment reported in 2005 (2) GLH 34 made following observation: "Looking to the aforesaid different situations, there is no doubt in our mind that even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-section (3) of Section 9 of the Act." 14. Thus, it has also been well settled that even if there are such powers with the authority, the same has to be exercised within a reasonable period. Having failed in the proceedings and get out from the registered sale deed, the heirs of the original owner-respondent No. 5 have been raising the boggy of Fragmentation Act before the authority and thereafter, at belated stage, have also filed Special Civil Suit No. 89 of 2013. However, the fact remains that the registered sale deed has not been held to be invalid conveying the title in the property or the land in question. Therefore, what cannot be done directly is sought to be achieved indirectly. This reflects the policy of dog in a manger as stated to extract some benefit. A useful reference can be made to the observations made by the Hon'ble Division Bench in a judgment reported in 2011 (3) GLH 98 has considered the similar issue and the exercise of power beyond reasonable period, it has been observed that: "Again reference is made to Broom's Legal Maximum [10th Edn.] and it has been observed, "...... it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure." Again reference is made to the concept of pari delicto and it has been quoted, "In pari delicto. In equal fault; equally culpable or criminal; in a case of equal fault or guilt. In equal fault; equally culpable or criminal; in a case of equal fault or guilt. A person who is in pari delicto with another differs from a particeps criminis in this, that the former term always includes the latter, but the letter does not always include he former. In other words, where both parties are equally at fault, the condition of the possessor or defendant is the stronger. As observed in a judgment in case of Smt. Ratnaprabhabai, D/o Hirojirao Naranrao Mane vs M/s. Tulsidas V. Patel & Ors., reported in 1982 (2) GLR 213 , person like the respondents - original land owners having pocketed the money long back cannot be permitted to catch at a straw by abuse of process of law indulging in the policy of dog in a manger so that hanging sword of litigation lingers on by which the purchasers like the petitioners may come around and may give some added financial advantage" 15. Therefore, having regard to the concept of equity and fair play, the respondent No. 5 cannot be permitted to take the advantage by such litigation which is pursued to extract money more particularly when they have pocketed the money and subsequently series of transactions have taken place with regard to the land in question. Therefore, the heirs of respondent No. 5-original vendor having no interest in the land and cannot be said to be an aggrieved party to pursue such remedy and may not have any locus-standi. 16. In the circumstances, the present petition deserves to be allowed. Prayer in terms of paragraphs-38(A)(B) are granted. The impugned order passed by the Secretary(Appeals), Revenue Department, dated 31.01.2000 at Annexure-N confirming the order passed by the Prant Officer, Gandhinagar, at Annexure-L and the proceedings under Case No. PO/T.D./Appeal/SR. 09/2014 order at Annexure-L are hereby quashed and set aside. Rule is made absolute. No order as to costs.