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2021 DIGILAW 798 (GUJ)

JIGARBHAI KAUSHIKBHAI PATEL v. STATE OF GUJARAT

2021-09-08

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of present petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the impugned communication dated 02.12.2019 by virtue of which a request dated 15.11.2019 came to be turned out. 2. The background of the facts which has given rise to the present petition is that the petitioner has purchased the land in dispute through registered sale deed dated 20.09.2016 and this subject land is an agricultural land bearing Block/Survey No.2659 admeasuring 3845 Sq. Mtrs. situated at Mouje Kakarkhad Party, Taluka Nadiad City, District Kheda, which was purchased as a bona fide purchaser after making full payment by way of consideration. This transaction of sale has been mutated in the revenue records vide Mutation Entry No.26267. The predecessor-in-title of the petitioner was declared as a tenant by the learned Mamlatdar and A.L.T., Nadiad vide order dated 19.04.2005. The said order came to be confirmed by the learned Deputy Collector (Land Reforms), Nadiad on 15.12.2006 and both the said orders also came to be confirmed by the learned Gujarat Revenue Tribunal, Ahmedabad vide order dated 11.04.2012 and as such, by virtue of these orders, the predecessor of the petitioner was declared as a tenant of the subject land and these orders were also challenged by way of petition before this Court being Special Civil Application No.3372 of 2014, which also came to be disposed of by confirming the orders vide judgment and order dated 27.06.2017. 2.1 It is the case of the petitioner that at the time when the petitioner purchased the subject land, the revenue record was reflecting the land as "Old Tenure" and later on, the revenue records pertains and reflects a change of tenure from "New Tenure" to "Old Tenure" which was certified and entry related to it, was Entry No.24517/A and as such, when the petitioner purchased the land, there was no restriction, accordingly, the petition. This entry of conversion was the subject matter of challenge by one Mr.Mukundbhai Mathurbhai Patel and others before the learned Deputy Collector, Nadiad by way of filing R.T.S. Appeal No.116 of 2017 wherein the Appeal came to be allowed by the Deputy Collector vide order dated 09.05.2017 and the entry came to be set aside. 2.2. This entry of conversion was the subject matter of challenge by one Mr.Mukundbhai Mathurbhai Patel and others before the learned Deputy Collector, Nadiad by way of filing R.T.S. Appeal No.116 of 2017 wherein the Appeal came to be allowed by the Deputy Collector vide order dated 09.05.2017 and the entry came to be set aside. 2.2. It is further the case of the petitioner that learned Mamlatdar (City) vide report dated 06.04.2017 was pleased to inform the learned Deputy Collector informing that Mutation Entry No.26267 which was made pursuant to the said transaction was required to be cancelled by taking the same in revision since the same is in conflict with the Revenue Entry No.24517/A which came to be set aside. Based upon such report, the learned Deputy Collector, Nadiad vide Revision Appeal No. 103 of 2017 was pleased to set aside the Mutation Entry No.26267 and directed to initiate appropriate proceedings for breach of condition. The said order dated 18.04.2017 was passed in Revision / Appeal No.103 of 2017. 2.3 Feeling aggrieved by the said order, the petitioner has challenged the said decision of the Deputy Collector, Kheda by way of filing Revision Application being RTS/RA/196/16 and during the passage of this multiple proceedings, the original owners of the disputed land have also initiated various proceedings under civil as well as criminal law and according to the petitioner, the same herein with a view to pressurize and extort money, the original land owners filed a Special Civil Suit No.25 of 2017 before the learned 3rd Additional Senior Civil Judge, Nadiad seeking cancellation of sale deed executed in favour of the petitioner. By that time, on 02.05.2017, the petitioner filed an application before respondent No.2 indicating that petitioner is ready and willing to pay the premium as per the prevailing policy of the Government but the learned Collector, Kheda has not taking any decision upon such application which has given rise to filing of Special Civil Application No.12930 of 2017 before this Court. According to the petitioner, vide order dated 24.07.2017, the Co-ordinate Bench of this Court was pleased to direct the learned Collector to take an appropriate decision in respect of request made by the petitioner. According to the petitioner, vide order dated 24.07.2017, the Co-ordinate Bench of this Court was pleased to direct the learned Collector to take an appropriate decision in respect of request made by the petitioner. On 01.08.2017, the learned Deputy Collector (Land Reforms), Kheda was pleased to communicate the petitioner that his application has been disposed of in view of the fact that there are several proceedings pending inter se before the Revenue Court as well as Civil Court. 2.4 It is further the case of the petitioner that after that also on 01.11.2017, reminder was sent by the petitioner clarifying the factual details and reiterated the stand that the petitioner is ready and willing to pay the premium as per the Government Policy but there was no response. The said application dated 01.11.2017 since not dealt with, the petitioner was constrained to file another writ petition being Special Civil Application No.22154 of 2017 which also came to be disposed of vide order dated 11.12.2017 with a liberty to the petitioner to file a fresh application and same shall be considered in accordance with law as expeditiously as possible. 2.5 In context of such, a further request came to be made by way of another application on 15.12.2017 in the prescribed format before the learned Collector, Kheda for seeking conversion of tenure of the subject land. But then, vide communication dated 11.01.2018, in view of various litigations which are pending at various forum, the application was not entertained and came to be disposed of. This has led, the petitioner has to file yet another petition which is numbered as Special Civil Application No.1921 of 2018 seeking regularizing the sale and by virtue of order dated 02.02.2018, the said petition came to be disposed of with a liberty reserved for the petitioner to apply again before appropriate authority after proceedings mentioned in the communication dated 11.01.2018. 2.6 It is further the case of the petitioner that simultaneously, the Revision Application which was filed being Revision Application bearing No.RTS/R.A./196/16-17 challenging the earlier order dated 18.04.2017 of learned Deputy Collector by which a Mutation Entry No.26267 came to be quashed. The said Revision Application came to be partly allowed and the impugned order dated 18.04.2017, as stated hereinbefore, came to be set aside by directing to mutate the entry on the basis of sale deed once again after paying premium to the Government. The said Revision Application came to be partly allowed and the impugned order dated 18.04.2017, as stated hereinbefore, came to be set aside by directing to mutate the entry on the basis of sale deed once again after paying premium to the Government. 2.7 It is further the case of the petitioner that the learned Deputy Collector (Land Reforms), Kheda was pleased to partly allow the Tenancy Appeal No.14 of 2017 vide order dated 31.05.2018 and was pleased to remand the matter back to the learned Mamlatdar and A.L.T., Nadiad which order the petitioner is inclined to challenge as stated in paragraph 5.12 of the petition compilation. By that time, the Special Civil Suit No.25 of 2017 came to be disposed of by rejection of plaint vide order dated 02.05.2018 in exercising of power under Order 7 Rule 11 of the CPC and in view of this development, again the petitioner has made an application on 19.04.2018 for seeking conversion of disputed land as "Old Tenure" and again made a request that he is ready and willing to pay the premiaz\um as per the police of the Government but again vide communication dated 18.05.2018, the application on account of pendency of litigation came to be disposed of. 2.8 This has again given rise to the petitioner to file yet another Special Civil Application No. 10221 of 2018 which came to be dismissed vide order dated 09.08.2018 mainly on the ground that pursuant to the remand order which has been passed since the learned Mamlatdar and A.L.T., Nadiad are ceased with the matter and since authority had received the objections from the predecessor of the petitioner, the writ was not entertained. 2.9 Subsequently, after passing the aforesaid order, the learned Mamlatdar and A.L.T. vide order dated 11.09.2019 was pleased to confirm the order dated 22.06.2012 and was pleased to direct the proceedings for conversion of the tenure of the disputed land and the petitioner once again made an application on 14.11.2019 seeking conversion of tenure of the subject land. Once again the authority concerned vide communication dated 02.12.2019 was pleased to dispose of the application on the ground of pendency of litigation before various forums and it is with this background, the present petitioner is again approached this Court by way of present petition basically challenging the impugned communication dated 02.12.2019 reflecting on page 81 of the petition compilation. 3. 3. The present petition came up for consideration before the Co-ordinate Bench of this Court in which the Court has issued notice vide order dated 24.12.2019 and after passage of time has came up for consideration before this Court with the aforesaid backgrounds. 4. Mr.A.B.Patel, learned advocate appearing for the petitioner has submitted that at the time when petitioner purchased the land in question, the revenue records were indicated that land is an "Old Tenure" without any restriction and as such, the petitioner bona fidely purchased the same by entering into registered sale transaction and as such when the petitioner is a bona fide purchaser simply because the litigation went on before various forums it is not open for the authority not to consider the request at all. It has been contended that the petitioner from day one is indicating that he is ready and willing to pay the premium as well and sought conversion. There is hardly any earthly reason available for authority went on rejecting the request repeatedly on the basis of pendency of litigation itself. It has been contended that petitioner was not aware about the fact when he entered into transaction about status of the land and had that been the position, the petitioner could not have entered into the transaction. It is in this set of circumstances, the decision taken by the authority repeatedly not to entertain the application is not supported by cogent reason. Hence, exercise of jurisdiction deserves to be quashed. 4.1 Mr.Patel, learned advocate has further drawn the attention of this Court that during pendency of the petition, some subsequent development had taken place in which even the conversion application which has been made by the petitioner is ordered to be filed in view of pendency of the proceedings before the Gujarat Revenue Tribunal, Ahmedabad and the said communication was sent to the petitioner on 07.08.2021 which came to be tendered on record by way of draft amendment. Considering the overall circumstances, as stated above, Mr.Patel, learned advocate has submitted that since sizable amount of investment is made by the petitioner in purchasing the land bona fidely, the orders and the impugned communication passed against the petitioner are arbitrary, unjust and not sustainable in the eye of law. As a result of this, the reliefs prayed for in the petition be granted in favour of the petitioner. As a result of this, the reliefs prayed for in the petition be granted in favour of the petitioner. No other submissions have been made. 5. Pursuant to the advance copy having been given, Ms.Nisha Thakor, learned Assistant Government Pleader appearing on behalf of the State authority has submitted that on account of multiple litigations which are pendency across various forums between the parties, the authority has safely passed an order to avoid further complication and multiple litigations to arise once again therefore, it is proper on the part of petitioner to wait till the proceedings are over. It has further been contended that a bare reading of the order / impugned communication is indicating that since proceedings are pending at that stage and keeping in view such pendency of litigation, the application is ordered to be filed but this cannot be construed by the petitioner that for all time to come his request is turned down. As a result of this, since the impugned communication does not suffer from any basic infirmity nor there is any patent illegality, looking to the serious controversy inter se going on between the parties, there is hardly any reason for the petitioner to went on challenging such kind of impugned communication time and again. This, on the contrary, is nothing but an abuse of process once having indicated that request cannot be considered this probably the fourth round of litigation in which similar request has been made and authority again and again had to convey which circumstance would oust the petitioner from equatable consideration. As a result of this, the relief prayed for does not deserve to be granted. Ms. Thakor, learned Assistant Government Pleader has also further contended that the innocence which has been projected by the petitioner appears to be not so sound enough to be accepted otherwise there was no occasion for the petitioner to go-on for making request for conversion of land from "New Tenure" to "Old Tenure" and as such, there was a deemed knowledge to the petitioner that land was not to be transacted without permission. However, be that as it may, since at this stage petitioner's application is not accepted, it would not prevent the petitioner from all time to come not to repeat the request after disposal of inter se litigations which are pending hence, no jurisdiction be exercised as prayed for. However, be that as it may, since at this stage petitioner's application is not accepted, it would not prevent the petitioner from all time to come not to repeat the request after disposal of inter se litigations which are pending hence, no jurisdiction be exercised as prayed for. Accordingly, a request is made not to entertain the petition. 6. Having heard learned advocates appearing for the respective parties and having gone through the material placed on record, following circumstances are not possible to be unnoticed by this Court. 7. From the pleadings, it appears that on multiple occasions such kind of request is being made by the petitioner and went on repeating the same instead of making an attempt to face and conclude pending litigation, which is, inter se going on. From the reading of the order, it appears that the transaction itself is in controversy for which the proceedings are pending before the Civil Court and the tenancy Appeal is also pending as well and as such, it appears that authority has taken the said stand to see that no irreversible situation be created. As a result of this, the discretion ppears to have been exercised not to deal with the request at this stage in view of pendency of litigation as mentioned in the order itself. The Court sees no reason to interfere with such exercise of discretion. 8. In addition to it, the petitioner has also not made out any case that irrespective of pendency of litigation any prejudice will cause if the request is not considered. Hence, in the absence thereof also, the Court is of the opinion not to interfere with in exercise of extraordinary jurisdiction. It further appears that a case is put up that at the relevant point of time when transaction entered into the land was having a status of “Old Tenure” but it appears that the very fact that petitioner applied for conversion would indicate that the innocence which have been pleaded about being not aware of the exact status of the land and being bona fide purchaser cannot be safely accepted. As a result of this, the order impugned does not call for any interference. As a result of this, the order impugned does not call for any interference. Additionally, the authority has not shut down the case for all time to come on the contrary, the wordings of the order are clear enough to suggest that in view of pendency of Special Civil Suit No.77/2019 and the Tenancy Appeal 35/2019, the request cannot be accepted and therefore, ordered to be filed, but this would not mean that even after disposal of the said pending litigation, the petitioner is debarred from reiterating the request. As a result of this, no serious prejudice is caused to the petitioner hence, in this peculiar background of facts, the Court is not inclined to exercise equatable jurisdiction. In any case, since the facts and the transaction will have to be examined by the competent forum where the proceedings are pending, this Court has refrained itself from expressing any opinion related to such controversy and dismissal of this petition will not come in the way of petitioner to re-agitate the issue after disposal of the said pending controversy as reflected in the impugned order and it is further clarified that this dismissal will not also come in the way of such proceedings which are pending for its disposal in accordance with law. 9. With these observations, since no case is made out, petition stands dismissed. Notice is discharged.