Gujarat High Court
Narendra vs State on 25 June, 2010
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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SCA/278/1995 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 278 of 1995
With
CIVIL
APPLICATION No. 10083 of 2009
In
SPECIAL
CIVIL APPLICATION No. 278 of 1995
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE AKIL
KURESHI
=========================================================
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 ?
=========================================================
NARENDRA
D CHUDASAMA - Petitioner(s)
Versus
STATE
OF GUJARAT & 7 - Respondent(s)
=========================================================
Appearance
:
MS
SANGITA PAHWA FOR M/S THAKKAR ASSOC.
for
Petitioner(s) : 1,
MR AJ DESAI, AGP for Respondent(s) : 1 - 3.
DS
AFF.NOT FILED (N) for Respondent(s) : 4, 6,
None for Respondent(s)
: 5,
NOTICE SERVED for Respondent(s) : 5.2.1, 5.2.2, 5.2.3,5.2.4
MR AJ PATEL, SR ADVOCATE WITH MR JAYESH M PATEL for Respondent(s)
: 5.2.1, 5.2.2,5.2.3
MR CH VORA for Respondent(s) : 5.2.1, 5.2.2,
5.2.3,5.2.4
MR BS PATEL for Respondent(s) : 7,
MRS RANJAN B
PATEL for Respondent(s) :
7,
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
:25/06/2010
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) This petition styled in the nature of public interest litigation has been filed challenging an order dated 19.12.1994 passed by the Collector, Amreli. By the said order, Collector was pleased to grant permission to respondent no.5 to put the land bearing survey no. 910, admeasuring 12 acres and 21 gunthas of Jesingpara ( the said land for short) to non agricultural use. It is this order of NA permission which is challenged by the petitioner on various grounds.
Brief facts are as follows :
2.1 The petitioner claims to be a devotee of the Laxminarayan temple and contends inter-alia that respondent no.5 was only a Pujari and had no ownership right over the land in question and the NA permission granted by the Collector was therefore, illegal.
2.2 With respect to the said land, earlier proceedings were carried out under the provisions of the Gujarat Devasthan Inams Abolition Act. The Deputy Collector, Amreli by order dated 20.1.1994 held that :
The land situated at Amreli Kasbe having revenue survey no. 910, 916 respectively admeasuring acre 12-21 guntha and acre 1-12 guntha is accepted to be Devsthan land. In respect to the suit land Land Survey Tenure came into force from 1910-10, from the said period Ramrao Gangadhar is holding the superior rights as the occupant, account holder, Barkhalidar. And, his old account and occupation land is acquired as heir by Malharrao Ramrai and finally the name of Venishanker Bhagwani as Pujari. After his lifetime it came in the name of Babulal Venishanker, the said transactions are believed to be authorized and it is believed that the present occupants are directly responsible to pay the land revenue to the government and thus it is held that the suit Devsthan lands are of Bin-dumala nature of the account holder. I hold that other then recovery of the land revenue from the account holder there are no other kinds of restrictions or conditions.
2.3 Respondent no.5 herein appealed against order of the Deputy Collector before the Government. The Revenue Secretary by his order dated 5.5.1994 allowed the appeal in part. In the said order while confirming the decision of the Deputy Collector that land is Devsthan land of Laxminarayan temple. Secretary further held that management of the land was done from time to time by respondent no.5. He was in occupation of land since 1960-1961. On 15.11.1979 i.e. before implementation of Gujarat Devasthan Inams Abolition Act, he was in occupation of the land. He therefore, held the land as inferior holder as per Section 4(2)(c) of the Gujarat Devasthan Inams Abolition Act. Secretary therefore, passed the following order :
The appeal by the appellant to the extent of modification of the orders by the Deputy Collector, is allowed. The impugned orders by the Deputy Collector are required to be considered below the Devsthan Inam Abolition Act, and below the said Act as held by the Deputy Collector, Amreli it is held that he applicants are Kanishka holders of this land.
2.4 Order dated 5.5.1994 passed by the Government was challenged(not by the petitioner) before the High Court. Said writ petition being Special Civil Application No. 6947/1994 came to be disposed of by Learned Single Judge by order dated 16.5.1994 which reads as follows :
This petition under Article 227 of the Constitution of India is directed against the order of Special Secretary (Appeals), State of Gujarat dated 5th of May, 1994. The Special Secretary has while allowing the Appeal, partially modified the order of Deputy Collector, Amreli. The Special Secretary has reached the categorical finding that land is Devasthan Inam Land add after abolition of Devasthan Inam Act by Gujarat Devasthan Inam Abolition Act, 1969, it is allowed to go to inferior holder. It is found that Babulal Venishanker is the inferior holder. It is also found that the land is held otherwise than by way of restricted tenure. In that view of the matter consistent with the findings reached, the authority has accepted the request of Babulal Venishanker to treat the land as old tenure land. It is not shown to the Court as to how the findings are without jurisdiction. No error of law apparent on the face of the record is also shown. The petitioner before this Court is a person, who has no direct or immediate interest in the land in question. On such grounds the petition is summarily rejected.
It is not in dispute that no further proceedings were carried against the said order and same thus achieved finality. Question of status of the land and right, title and interest of respondent no.5 thereon were thus finally decided by this Court by said order dated 16.5.1994. Combined effect of order passed by the Deputy Collector on 20.1.1994, by Government on 5.5.1994 and by this Court in writ petition on 16.5.1994 is that the said land is a Devasthan land and that respondent no.5 was holding the same as an inferior holder on the date of introduction of Gujarat Devasthan Inams Abolition Act and further that land is held otherwise than by way of restricted tenure.
It is not in dispute that the petitioner did not challenge the order passed by the Government nor sought to question the decision of Learned Single Judge dated 16.5.1994.
In view of the above mentioned orders, rights of respondent no.5 flowing from the Gujarat Devasthan Inams Abolition Act on the land in question were recognized and crystallized. He was recognized as inferior holder. He was entitled to certain rights under Section 6 of the Gujarat Devasthan Inams Abolition Act. Impugned order dated 19.12.1994 passed by the Collector, Amreli granting NA permission is thereafter, only a consequential order. Entire attempt of the petitioner is to question the status of respondent no.5 vis-a-vis the said land. To our mind, same is not open to the petitioner. To reiterate, status of respondent no.5 vis-a-vis the said land was determined by virtue of series of orders starting from the order passed by the Deputy Collector on 20.1.1994, as modified by the government on 5.5.1994, which was upheld by this Court on 16.5.1994. The petitioner cannot seek to reopen the position in the present proceedings. On the basis of said position, respondent no.5 approached the Collector and sought NA permission for the land in question. Nothing has been pointed out to us to hold that such NA permission was granted de-hors the provisions of law. In any case once we hold that the title of respondent no.5 on the land cannot be questioned in the present proceedings, challenge to NA permission loses the character of public interest. Ordinarily, question of grant of NA permission to a private land owner is a matter between him and the government. In absence of any thing further, no question of interest of public importance can be stated to be involved. As already noted, main attempt however, on part of the petitioner was to question the status of respondent no.5 vis-a-vis the land. Counsel for the petitioner vehemently submitted that land was of the ownership of the temple. Respondent no.5 as Pujari only had occupancy right thereon and that he could not have any additional right. These however, are not the questions which can be examined in present petition, issues having achieved finality earlier.
In the result petition fails, same is dismissed. Civil Application also stands dismissed accordingly.
(S.J.Mukhopadhaya,C.J.) (Akil Kureshi,J.) (raghu) Top