Gujarat High Court
Yusuf vs State on 19 July, 2011
Author: Chief Justice
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
Print
LPA/1578/2009 24/ 24 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1578 of 2009
In
SPECIAL
CIVIL APPLICATION No. 7852 of 2009
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
YUSUF
GULAMMOUDIN MOGAL - Appellant(s)
Versus
STATE
OF GUJARAT & 9 - Respondent(s)
=========================================================
Appearance
:
MR
PERCY KAVINA, SR.ADVOCATE with MR SP MAJMUDAR
for
Appellant : 1. MRS
MANISHA SHAH, AGP for Respondent(s) : 1.
NOTICE SERVED BY DS for
Respondent(s) : 2 - 3.
MR BS PATEL with MR CHIRAG B PATEL for
Respondent(s) : 4 - 6.
MR KM PATEL, SR.ADVOCATE with MR JIGAR M
PATEL for Respondents:
7-10.
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 19/07/2011
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By way of this Appeal the appellant - original petitioner seeks to challenge the legality, validity and propriety of the judgment and order dated 3rd August 2009 passed by the learned Single Judge, whereby the learned Single Judge rejected the petition, confirming the order dated 25th June 2009 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.S.36/2007.
Though the facts of the entire case have been narrated exhaustively in the judgment and order of the learned Single Judge, still few facts relevant for the purpose of deciding this Appeal can be summarised as under:-
(a) The appellant herein - original petitioner purchased the land bearing Block No.51, Revenue Survey No.24 admeasuring 3-Hectares-1-Are-49-Sq.meters of village Pali, Taluka Choryasi, District Surat from one Shri Maganbhai Nagjibhai Vyas and one Shri Hasmukhbhai Bhanabhai Patel under a registered sale-deed executed on 29th July 2008.
(b) Record reveals that the two sellers, namely, Shri Maganbhai Vyas and Shri Hasmukhbhai Patel had purchased the land in question from one Vanitaben, daughter of Jayantilal Maganlal, and Shri Chetankumar Prabhubhai Patel under a registered sale-deed dated 9th April 2007.
(c) Record also reveals that the land in question originally was of the ownership of Shri Jayantilal Maganlal (since deceased). Upon demise of Shri Jayantilal Maganlal, the land devolved on his wife Bhanumatiben Jayantilal and daughter Vanitaben Jayantilal. On 25th March 1996, the said two persons executed a sale-deed in favour of respondent nos.3 and 8 to 10, namely, Shri Chetankumar Prabhubhai Patel, Shri Madhusudanbhai Babubhai, Shri Pramodkumar Babubhai and Shri Dineshchandra Babubhai. Entry No.1086 was mutated in the revenue record recording the aforesaid transaction. On 28th December 1998 one Kantilal Gulabdas Kapadia claiming to be the power of attorney holder of respondent no.3 sold the property under a registered sale-deed dated 28th December 1998 in favour of respondent no.7 herein, namely, Shri Vijaybhai Mohanbhai Gandhi.
Entry No.1197 came to be mutated in the revenue record recording the said transaction.
(d) Record reveals that Shri Chetankumar Prabhubhai Patel lodged objections before the Mamlatdar against Entry No.1197 on 5th April 1999 on the premise that the land has been transferred on the basis of a bogus power of attorney. Thereafter, Entry No.1197 came to be cancelled by the Mamlatdar vide order dated 26th July 1999. This order came to be challenged by Shri Vijaybhai Mohanbhai Gandhi before the Deputy Collector and vide order dated 14th August 2000 the appeal was allowed in favour of Shri Vijaybhai Mohanbhai Gandhi.
(e) Aggrieved by the said order passed by the Deputy Collector, Shri Chetankumar Prabhubhai Patel carried the matter before the District Collector, who uphold the order of the Mamlatdar to cancel Entry No.1197 and further directed the Mamlatdar to initiate proceedings in relation to Entry No.1086 in terms of the provisions of Section 84(C) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as, 'the Act') for breach of provisions of Section 63 of the Act.
(f) Record reveals that being aggrieved by the order of the District Collector, Shri Vijaybhai Mohanbhai Gandhi and respondent nos.8 to 10 approached the Special Secretary, Revenue Department, by way of Appeal No.30/2001, which came to be remanded to the Collector vide order dated 21st June 2003. Against the said order, Shri Vijaybhai Mohanbhai Gandhi approached this Court by way of Special Civil Application No.984/2004. On 17th August 2004, the learned Single Judge of this Court disposed of the petition holding as under:-
"When there is a dispute with regard to title and the validity of the power of attorney, the parties are required to approach the Civil Court. As held by this Court in the case of Legal representatives of P.K.Ramani Vs. Collector, Rajkot reported in 2003(1) G.L.H. Page 30, when there is a dispute with regard to the title, the parties are required to be relegated to approach the Civil Court. The Revenue Authorities, while exercising RTS proceedings, had no jurisdiction to decide the disputed question of title and the validity of the transaction. Under the circumstances, it will be open for the respondent no.3 to file a civil suit challenging the legality and validity of the transaction which was in favour of the petitioner no.1 and the legality and validity of the power of attorney alleged to have been given in favor of one Kantilal Kapadia who has sold the land in question to the petitioner no.1. As held by the Honourable Supreme Court of India and this Court in catena of judgments, the entries in the revenue records are for a fiscal purpose and only for the purpose of paying of revenue and ipso facto does not confer any right, title or interest in favor of any party in whose favour the entry is made. However, in view of the registered sale deed as of today in existence in favor of the petitioner no.1, necessary effect and/or entry is to be made in the revenue record which will be only for the purpose of fiscal purpose and for the purpose of payment of revenue. Ultimately, the parties are required to approach the Civil Court for establishing their rights and/or challenging the legality and validity of the transaction/sale deed/power of attorney. The entry in favour of the petitioner no.1 being Entry No.1197 dated 28.12.1998 would be for fiscal purpose and only for the purpose of payment of revenue and will be subject to the ultimate outcome of the civil dispute between the parties. At this stage, Shri J.M.Patel, Learned Advocate appearing for the petitioners has submitted that the petitioners are in possession of the land in question and an appropriate direction be issued restraining the respondent no.3 and his agents from disturbing the possession of the petitioners, more particularly, the petitioner no.1. On the other hand, Shri Sheetal Patel, learned Advocate for the respondent no.3 states that his client is in possession of the land in question. Without expressing anything on merits, with regard to who is in possession of the land in question, it is observed that the entry in favour of the petitioner no.1 would be for the purpose of fiscal purposes and for the purpose of payment of revenue and merely on the basis of Entry No.1197, the petitioner cannot claim the possession if he is not in possession of the land in question. The parties are directed to maintain status quo till appropriate orders are obtained form the Civil Court with regard to the possession which can be decided only after deducing evidence. However, merely on the basis of the entry, nobody will claim any possession. For the reasons stated above, the order of the State Government dated 21.6.2003 passed in Revision Application No.30 of 2001 is quashed and set aside. Rule is made absolute to the aforesaid extent with the aforesaid observations and directions with no order as to costs."
(g) Record further reveals that on 10th December 2004 the Collector directed the Mamlatdar to mutate entry in the revenue record that parties should maintain status quo till an appropriate order is obtained from a competent civil court. On 30th May 2001, the Mamlatdar and ALT, Choryasi, issued notice to the parties and ultimately vide order dated 29th June 2001 held that as there was breach of provisions of Section 63 of the Act, Section 84(C) of the Act was attracted and directed vesting of the land in the State Government without any encumbrance.
(h) Against the order passed by the Mamlatdar, respondent nos.8 to 10 carried the matter before the Deputy Collector by way of appeal being Tenancy Appeal No.61/2001, which came to be dismissed for default on 22nd November 2006 by the Deputy Collector. The finding that Shri Madhusudanbhai, Shri Pramodkumar and Shri Dineshchandra were not agriculturists thus was confirmed by the Deputy Collector.
(i) Record reveals that Shri Chetankumar Prabhubhai Patel preferred a separate appeal challenging the order of the Mamlatdar and ALT being Tenancy Appeal No.65/2001 before the Deputy Collector. On 25th January 2007, the Deputy Collector allowed the said appeal holding that Shri Chetankumar Prabhubhai Patel was an agriculturist and thus to that extent the order made by the Mamlatdar and ALT was quashed and set-aside while upholding the finding in relation to Shri Madhusudanbhai, Shri Pramodkumar and Shri Dineshchandra. Shri Vijaykumar and three others, namely, Shri Madhusudanbhai, Shri Pramodkumar and Shri Dineshchandra challenged the order of the Deputy Collector passed in Tenancy Appeal No.65/2001 by way of Revision Application No.TEN.B.S.36/2007 before the Gujarat Revenue Tribunal. On 25th June 2009, the Tribunal passed an order holding that the order passed by the Deputy Collector dated 25th January 2007 in Tenancy Appeal No.65/2001, in so far as the same relates to respondent nos.7 to 10 is concerned, was quashed and set-aside, while in relation to Shri Chetankumar the said order was not disturbed. Consequently, the order passed by the Mamlatdar and ALT on 29th June 2001 in Tenancy Case No.62/2001 came to be quashed and set-aside by the Tribunal.
In the meantime, Shri Vijaykumar transferred the land in question in favour of respondent nos.4 to 6 herein, namely, Shri Vipulbhai Dhirubhai Shyani, Shri Babubhai Ranabhai Shyani and Shri Bhadreshkumar Madhavji Radadia under a registered sale-deed dated 18th October 2006, for which Entry No.1360 came to be mutated in the revenue record. On 22nd May 2007, the said entry was cancelled by the Mamlatdar.
(j) Record further reveals that in the meantime names of Vanitaben and Shri Chetankumar were came to be entered in the revenue record vide Entry No.1365. On 9th April 2007, Vanitaben and Shri Chetankumar executed a sale-deed in favour of Shri Maganbhai Vyas and Shri Hasmukhbhai Patel, who in turn, executed a sale-deed on 29th July 2008 in favour of the appellant herein.
Prima facie, it appears that in the backdrop of the aforesaid facts the appellant herein was aggrieved by the order dated 25th June 2009 passed by the Gujarat Revenue Tribunal.
It is at this stage that the appellant herein preferred Special Civil Application No.7852/2009 and challenged the order passed by the Tribunal dated 25th June 2009. The learned Single Judge, while rejecting the petition, took notice of the fact that in Special Civil Application No.984/2004 preferred by Shri Vijaykumar, this Court, vide order dated 17th August 2004, directed the parties to maintain status quo and have the dispute resolved before the civil court. The learned Single Judge took notice of the fact that Vanitaben could not have transferred the land in question in favour of Shri Maganbhai Vyas and Shri Hasmukhbhai Patel on 9th April 2007 without the title being established and cleared and the same would be the position vis-a-vis Shri Chetankumar. If Vanitaben and Shri Chetankumar could not execute a sale-deed in favour of Shri Maganbhai Vyas and Shri Hasmukhbhai Patel, the said two persons could not have transferred the land under sale-deed dated 29th July 2008 in favour of the present appellant herein.
We have heard learned senior counsel Mr.Percy Kavina appearing with learned advocate Mr.S.P.Majmudar for the appellant; learned counsel Mr.B.S.Patel appearing with learned advocate Mr.Chirag Patel for respondent nos.4 to 6; learned senior counsel Mr.Kanubhai M.Patel appearing with learned advocate Mr.Jigar M.Patel for respondent nos.7 to 10; and learned AGP Mrs.Manisha Shah appearing for respondent no.1.
Learned counsel for the appellant has put forward the following contentions while assailing the judgment and order passed by the learned Single Judge:-
learned counsel would submit that it ought to have been appreciated that the appeal of Vijaybhai and three others being Tenancy Appeal No.61/2001 was dismissed for default on 22nd November 2006 and hence, the finding that respondent nos.8 to 10 were not agriculturists was thus confirmed by the Deputy Collector and, therefore, respondent nos.8 to 10 did not have any right to challenge the order passed in Tenancy Appeal No.65/2001.
Learned counsel would submit that it ought to have been appreciated that respondent nos.7 to 10 had never challenged the order passed in Tenancy Appeal No.61/2001, which was an appeal preferred by them, and without challenging the same they could not have challenged the order passed in the aforesaid tenancy appeal.
Learned counsel would submit that it ought to have been appreciated that the Tribunal could not have taken fresh evidence from respondent nos.7 to 10 in a Revision Application.
Learned counsel would further submit that it ought to have been appreciated that the Tribunal has misinterpreted the fact that respondent nos.7 to 10 were held to be non-agriculturists because of the restriction of 8 kms. It is submitted that respondent nos.7 to 10 were held to be non-agriculturists not only because of the aforesaid facts.
He would further submit that it ought to have been appreciated that respondent nos.7 to 10 in any case had no right, title or interest over the land in question since, as per them, they have sold the land in question to respondent nos.4 to 6.
It is further submitted that it ought to have been appreciated that the sale in favour of respondent nos.4 to 6 had taken place when respondent nos.7 to 10 were held to be non-agriculturists. Hence, by the present impugned order, the sale entered into in favour of respondent nos.4 to 6, which was in utter defiance of law, would be regularized.
Learned counsel would further submit that it ought to have been appreciated that the impugned order affects the title of the appellant, who is the bona fide purchaser of the land in question for consideration.
Learned counsel would submit that it ought to have been appreciated that none of the parties before the Tribunal pointed out that the appellant has acquired title and interest over the land in question and, therefore, was a necessary party in the aforesaid Revision Application.
Learned counsel would further submit that it ought to have been appreciated that the Tribunal has grossly erred in holding that respondent nos.7 to 10 are agriculturists. The said finding is given on the basis of the order passed by this Court in Special Civil Application No.10083/1999 dated 23rd April 2009. However, it is submitted that the said order was only pertaining to certification of entry in their favour on the basis of a registered document. It is submitted that the Tribunal has committed a substantial error of law by treating the said order of this Court as conferring the status of agriculturists on the concerned respondents.
Per contra, learned counsel for respondent nos.4 to 6 put forward the following contentions :-
Learned counsel would submit that respondent nos.4 to 6 are the bonafide purchasers who purchased the property from respondent nos.7 to 10. It is submitted that Vanitaben executed a sale-deed in favour of respondent nos.8 to 10. She had executed the sale-deed after accepting full consideration from respondent nos.3 and 8 to 10.
It is submitted that respondent no.3, through his power of attorney, executed sale-deed of his 1/4th share in favour of respondent no.7 and respondent no.7 became the owner of 1/4th share along with respondent nos.8, 9 and 10. He would submit that respondent no.3 approached before the revenue authorities saying that irrevocable power of attorney is bogus and concocted.
In Special Civil Application No.984/2004, it has been clearly observed that contentions of respondent no.3 regarding forged and concocted power of attorney would not be tenable before the revenue authorities and the same can be decided only by the civil court.
He would further submit that respondent no.3 preferred Regular Civil Suit No.42/2008 for declaration, permanent injunction and cancellation of the sale-deed. The suit came to be filed on 7th January 2008, while as per the case of the appellant, respondent no.3 and Vanitaben executed sale-deed in favour of Shri Maganbhai Nagjibhai Vyas and Shri Hasmukhbhai Bhanabhai Patel on 9th April 2007, who in turn, executed the sale-deed in favour of the appellant on 31st March 2008. In the civil suit filed by respondent no.3, he pleaded that he was the owner and possessor of the property. He submitted that in that event the sale-deed dated 9th April 2007 executed in favour of the present appellant cannot be accepted.
It is further submitted that a person who has sold the property committing breach of provisions of the Tenancy Act cannot approach the Court for quashing and setting aside the order passed in favour of the party who has purchased the land.
Lastly, learned counsel submitted that there is no error committed by the learned Single Judge in rejecting the petition, which warrants any interference in this Appeal.
Learned counsel appearing for respondent nos.7 to 10 also submitted that no error has been committed by the learned Single Judge in rejecting the petition.
We have given our anxious thoughts and considerations to all the relevant aspects of the matter. We have also perused the record and we have also considered the contentions of the respective parties.
We have noticed that this litigation has a very checkered history. In Tenancy Case No.62/2001 initiated under the provisions of Section 84(C) of the Act, the Additional Mamlatdar and ALT, Choryasi, Surat, vide order dated 29th June 2001, passed the following order. The relevant part of the order is reproduced hereinbelow:-
"Therefore, it is established that the disputed land has been transferred to non-agriculturists, hence it is proved that violation of Section 63 of the Tenancy Act is committed. Therefore, I pass order to vest the disputed land in the Government under Section 84-C of the Tenancy Act.
This disputed land will be treated as vested in the Government without any encumbrances under Section 84-C of the Tenancy Act from the date of this order.
Pronounced and put my signature and seal of office on this 29/6/2001."
It appears that against the said order, Tenancy Appeal No.61/2001 came to be filed by Shri Madhusudanbhai Babubhai, Shri Pramodkumar Babubhai, Shri Dineshchandra Babubhai and Shri Vijaybhai Mohanbhai Gandhi. The Deputy Collector, Surat, vide order dated 22nd November 2006, passed the following order. The relevant part of the order is reproduced hereinbelow:-
"It is ordered to file the appeal of the appellants on account of their constant absence and to delete the appeal from the register, which is relating to the land bearing block no.51, survey no.24 admeasuring Hec.03-01-49 sq.mtrs., HAVING CESS OF Rs.40.52 paise, of Moje Pali, Taluka Choryasi, Dist.Surat."
It also deserves to be noted that against the said order dated 29th June 2001 passed by the Additional Mamlatdar and ALT in Tenancy Case No.62/2001, an independent appeal was preferred by Shri Chetankumar Prabhubhai Patel being Tenancy/ Appeal Case No.65/2001. It deserves to be noted that Shri Chetankumar Prabhubhai Patel while preferring Tenancy/Appeal Case No.65/2001, did not deem fit to join Shri Madhusudanbhai Babubhai, Shri Pramodkumar Babubhai, Shri Dineshchandra Babubhai and Shri Vijaybhai Mohanbhai Gandhi as the party respondents. Therefore, the four persons were admittedly not party in Tenancy/Appeal Case No.65/2001.
Shri Chetankumar Prabhubhai Patel's appeal bearing No.65/2001 came to be allowed, wherein the Deputy Collector, Surat passed the following order. The relevant part of the order is as under:-
"The appeal of the appellant is hereby allowed and the order No.Tenancy/Case No.62/2001 dated 29/6/2001 passed by the Addl.Mamlatdar and Agricultural Lands Tribunal [Tenancy], Choryasi, vesting the land of survey no.51, block no.51 admeasuring Hec.3-01-49 of Moje Pali, Tal.Choryasi, is hereby quashed and set aside. And the transfer made in favour of other persons, except the appellant, by entry nos.1086 and 1197 is hereby held as illegal as per section 84[C] of the Tenancy Act for the violation of section 63 of the Tenancy Act and rule 36[1][f]. And it is hereby held to restore the position prior to transfer made in favour of the persons, except the appellant, being purchasers of the land by registered sale-deeds by entries nos.1086 and 1197. It is hereby held that simultaneously, this transfer will be subject to the judgment of the Hon'ble Gujarat High Court rendered in S.C.A. No.984/2004 dated 17/8/2004."
The said order was challenged before the Gujarat Revenue Tribunal by Shri Vijaybhai Mohanbhai Gandhi, Shri Madhusudanbhai Babubhai, Shri Pramodkumar Babubhai and Shri Dineshchandra Babubhai and the Gujarat Revenue Tribunal, Ahmedabad, vide order dated 25th June 2009, passed the following order. The relevant part of it reads as under:-
"Revision Application No.TEN.B.S.36/07 is allowed. The order passed by the Dy.Collector, Choryasi Prant, Surat dated 25.1.2007 in Tenancy Appeal No.65/01, so far as it relates to the present applicants, is quashed and set aside. So far as it relates to opponent No.3 the order of the Dy.Collector, dated 25.1.2007 is kept as it is and not disturbed. Consequently, the order passed by the Mamlatdar & ALT, Choryasi, Surat dated 29.6.2001 in Tenancy Case No.62/2001 is quashed and set aside."
It is submitted that neither Shri Vijaybhai Mohanbhai Gandhi, Shri Madhusudanbhai Babubhai, Shri Pramodkumar Babubhai and Shri Dineshchandra Babubhai had challenged the earlier order dated 22nd November 2006 passed by the Deputy Collector dismissing Appeal No.61/2001 and, therefore, the Gujarat Revenue Tribunal ought not to have entertained the Revision Application filed by them against the order dated 25th January 2007 passed in Tenancy Appeal No.65/2001. However, if we set-aside this order of the Gujarat Revenue Tribunal dated 25th June 2009 on this illegality, the resultant effect will be to revive one another illegal order i.e. the order dated 25th January 2007 passed by the Deputy Collector in Tenancy/Appeal Case No.65/2001 preferred by Shri Chetankumar Prabhubhai Patel. Why this order is illegal, is also very obvious. The Additional Mamlatdar and ALT, Choryasi in Tenancy Case No.62/2001 ordered that the mutation entry nos.1086 and 1197 and the transfer referred to in the said entries are in violation of Section 63 of the Act and, therefore, the entire disputed land was ordered to be vested with the State Government. Against this order, the aggrieved persons preferred two different appeals before the Deputy Collector, Choryasi Prant, Surat. Shri Chetankumar Prabhubhai Patel filed Tenancy Appeal No.65/2001 whereas Shri Vijaybhai Mohanbhai Gandhi, Shri Madhusudanbhai Babubhai, Shri Pramodkumar Babubhai and Shri Dineshchandra Babubhai preferred Tenancy Appeal No.61/2001. It is undisputed that Tenancy Appeal No.61/2001 was dismissed for non-prosecution while Tenancy Appeal No.65/2001 came to be heard and decided by the Deputy Collector. The illegality is that the Deputy Collector not only dealt with the disputes and considered the case of Shri Chetankumar Prabhubhai Patel but also considered the case of Shri Vijaybhai Mohanbhai Gandhi, Shri Madhusudanbhai Babubhai, Shri Pramodkumar Babubhai and Shri Dineshchandra Babubhai who were the appellants of Tenancy Appeal No.61/2001 and who never challenged the order passed in Tenancy Appeal No.61/2001 dismissing the same for non-prosecution.
Only on this short ground, we are not inclined to interfere with the order passed by the learned Single Judge confirming the order passed by the Gujarat Revenue Tribunal dated 25th June 2009 in Revision Application No.36/2007.
It is settled position of law that a writ court, in exercise of its jurisdiction under Article 226 of the Constitution of India, need not quash an order if it gives rise to another illegal order. The Supreme Court in the case of CIT v. Green World Corporation, reported in (2009)7 SCC 69, in paragraph 66 held as under:-
"66.
It is now well settled that this Court in exercise of its extra-ordinary jurisdiction under Article 136 of the Constitution of India may, in the event an appropriate case is made out, either refuse to exercise its discretionary jurisdiction or quash both the orders if it is found that setting aside of one illegal order would give rise to another illegality.
In Transmission Corpn. of A.P. Ltd. vs. Lanco Kondapalli Power (P) Ltd. [(2006) 1 SCC 540], this Court held:
'53.
It is now well-settled that this Court would not interfere with an order of the High Court only because it will be lawful to do so. Article 136 of the Constitution vests this Court with a discretionary jurisdiction. In a given case, it may or may not exercise its power.' "
An identical view has been taken by the Supreme Court in the matter of State of Uttar Pradesh v. Ajitsinh Bola, reported in (2004)6 SCC 800. In paragraph 9 it has been observed as under:-
"9.
He has also not shown us any law or rule which authorizes the District Magistrate to take over possession in the manner done in the instant case. We do not wish to say anything more at this stage because we are conscious of the fact that the writ petitions are still pending before the High Court. Having regard to the manner in which the District Magistrate took over possession of the premises, which appears to us as at present advised, to be high-handed, arbitrary and without any legal sanction we are not persuaded to exercise our discretion under Article 136 of the Constitution of India to set aside the interim order passed by the High Court. It is well-settled that this Court will not exercise its discretion and quash an order which appears to be illegal, if its effect is to revive another illegal order."
In the matter of Gadde Venkateshwara Rao v. Government of Andhra Pradesh & Ors., reported in AIR 1966 SC 828, in paragraph 17 it has observed as under:-
"17. The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under s. 72 of the Act to review an order made under s. 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order-it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."
We are also in complete agreement with the findings recorded by the learned Single Judge to the effect that quashing of the order dated 25th June 2009 is not going to make any difference in so far as the appellant is concerned because in an earlier round of proceedings initiated by Shri Vijaybhai Mohanbhai Gandhi, vide order dated 17th August 2004, this Court in Special Civil Application No.984/2004 directed the parties to maintain status quo and get the dispute resolved through the civil court. Therefore, Vanitaben could not have transferred the land in question in favour of Shri Maganbhai Vyas and Shri Hasmukhbhai Patel on 9th April 2007 without the title being established and cleared. The learned Single Judge is right in concluding that same would be the position vis-a-vis Shri Chetankumar. If Vanitaben and Shri Chetankumar could not execute a sale in favour of Shri Maganbhai Vyas and Shri Hasmukhbhai Patel, the said two persons could not have transferred the land under sale-deed dated 29th July 2008 in favour of the present appellant. The land, having already vested in the State Government, could not have been sold by Vanitaben.
For the reasons recorded above and applying the well-settled principle of law that a writ court, in exercise of its jurisdiction under Article 226 of the Constitution of India or a petition under Article 227 of the Constitution of India, need not quash an order if it gives rise to another illegal order, we hold that no error, much less an error of law, can be said to have been committed by the learned Single Judge in dismissing the petition, confirming the order passed by the Gujarat Revenue Tribunal dated 25th June 2009.
We do not find any merit in this Appeal and the same is hereby ordered to be dismissed with no order as to cost.
(S.J.Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) /moin Top