Gujarat High Court
Gev Dinshaji Vesuna vs State Of Gujarat on 21 December, 2021
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12738 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GEV DINSHAJI VESUNA & 3 other(s)
Versus
STATE OF GUJARAT & 6 other(s)
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Appearance:
. for the Petitioner(s) No. 2,3,4
ADVOCATE NOTICE NOT RECD BACK(80) for the Petitioner(s) No. 1
DELETED(20) for the Petitioner(s) No. 1.2
MR. NIRUPAM NANAVATI, SR. ADVOCATE WITH MR MANOJ S
JOSHI(2961) for the Petitioner(s) No. 1.1,1.3,2,3,4
MS. DHWANI TRIPATHI, AGP (1) for the Respondent(s) No. 1,2,3,7
MR HS MUNSHAW(495) for the Respondent(s) No. 4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 5,6
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 21/12/2021
ORAL JUDGMENT
1. Rule. Learned AGP Ms. Dhwani Tripathi waives service of notice on behalf of respondent State and Mr. H.S.Munshaw, Page 1 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 learned advocate waives service of notice on behalf of respondent No. 4. Rule is fixed forthwith.
2. By way of present petition, the petitioners have challenged the impugned order of respondent No.3 i.e. Deputy Collector dated 6.7.2009 passed in Order No. RTS/REMAND/APPEAL NO. 171/2005 and further order dated 2.2.2011 passed in RTS/REMAN/ APPEAL No. 153/09 and the order dated 29.4.2016 passed by respondent No.1 Secretary Appeals (SSRD) passed in MVV/HKP/SAT/23/2012.
3. The brief facts of the present petition are as under:
3.1 The grand-father of the petitioners namely Faramji Sapurji Vesuna was the original owner of the land bearing Survey No. 24, admeasuring H 1- 21 - 00 sq. Mtrs (Old Survey No. 31/1, 31/2, 31/3, 31/4) of Village: Vesu, Taluka: Choryasi, District: Surat and his name was entered in the revenue record of 1944-45.
Thereafter, name of the father of the petitioner namely Dinsaji Faramji Sapurji Vesuna was entered in the revenue record in the year 1948-49. The petitioner came to know regarding so-called exparte award passed in 23.9.1965 and entry being entry No. 2155 was mutated on 21.1.1997 in revenue record whereby name of respondent No.6 was entered as occupier after 32 years. It is submitted by the petitioner that they had never received any notice for acquisition and not a single penny is paid to the petitioners and the alleged acquirement of the land is without following due procedure of law. It is contended that when the petitioners obtained copy of the revenue record of the land in Page 2 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 question on 30.6.2000, they came to know that an order of Land Acquisition No. PR/432/63 dated 23.9.1965 is entered in the second right of 7/12 abstract for the purpose of Primary Health Centre Piplod. Therefore, the petitioner immediately tried to get copy of the award of 1965 but they could not find record. The petitioner made application to get a copy of the award to the concerned Department, but they replied by letter dated 24.10.2001 that copy of the award of the year 1965 is not available. Even thereafter, the petitioners applied to get copy of the Gazette but vide reply dated 1.7.2002 it was informed that no such record is available.
3.2 It is contended that entry of the so-called award of 23.9.1965 has been entered into revenue record vide entry No. 2155 on 21.1.1997, the petitioner came to know about this fact in 2000. The petitioners then filed appeal before respondent No.3. The Deputy Collector, on the basis of the letter dated 14.11.1996, written by District Development Officer to the Taluka Development Officer hold that acquisition has taken place.
3.3 Being aggrieved and dissatisfied with the order dated 28.10.2004, passed by Deputy Collector, the petitioner approached Collector in 2005 wherein also without taking any evidence and without verifying any Village revenue record and without verifying the fact as to how much land is acquired, the Collector remanded the matter back to subordinate authority to verify all these facts. In view of the communication issued from the Special Land Acquisition Officer, Surat and letter of DILR, Page 3 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 Surat that records were destroyed in the floods, on the basis of the earlier communication that acquisition proceedings had undertaken in 1965, ultimately, the same fate has happened to the said remanded proceedings. Therefore, the petitioner once again approached the Collector by way of Appeal. But, he has also rejected the same and against the same, the petitioners have approached SSRD, wherein also the application came to be rejected.
4. On the basis of the aforesaid factual aspect, the petitioner has challenged the impugned action of the respondents on the ground that:
(i) that no notice of any acquisition proceedings were ever received by the fore-father of the petitioner and no compensation has ever been paid;
(ii) That the award of 1965 is not produced and there is also an entry in village Form 7/12 abstract showing that the land is belonging to Lake.
(iii) There is no evidence as to on what basis the District Panchayat has issued letter and revenue entry No. 2155 was entered in the revenue record.
(iv) That the award is of the year 1965, no entry was ever recorded in the revenue record till 1997 and the entry was recorded in 1997 instead of Taluka Panchayat, Choryasi as occupier, District Panchayat, Surat, is shown as occupier.Page 4 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022
C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021
(v) Entry qua the Acquisition Land is noted in village Form 7/12 abstract in 1965 as second right but it is not reflected in Village Form No.6 and also Publication Entry under Section 4,6,9 of Acquisition Act has not been noted in the 7/12 abstract.
(vi) The SSRD has overlooked the fact that the order of LAQ is not available at all and as such no such order of acquisition was ever passed. In present day also, Public Health Centre is not functioning and the said land is not utilised for the purpose for which it was acquired. Alone on this point, the entry needs to be cancelled.
5. Heard Mr. Nirupam Nanavati, learned Senior Counsel assisted by Mr. Manoj Joshi, learned advocate for the petitioners, Ms. Dhwani Tripathi, learned AGP for the respondent State and Mr. H.S. Munshaw, learned advocate for respondent No.4.
6. Perused the written submissions made on behalf of learned advocate for the petitioners as well as learned advocate for the respondent No.4.
7. Mr. Nirupam Nanavati, learned Senior Counsel assisted by Mr. Manoj Joshi, learned advocate for the petitioner has reiterated the facts stated hereinabove and the grounds stated in the memo of petition, challenging the impugned orders and has submitted that so far as the entry regarding acquisition of land in the year 1965 is concerned, the same has been made after almost 32 years i.e. in the year 1997 and that too on the basis of the letter of Taluka Development Officer. Mr. Nanavati has Page 5 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 submitted that there is no documents regarding proceedings of acquisition of land in question made available to the petitioner herein. Regarding the grounds raised by the revenue authority that record has been destroyed in the flood in Surat, Mr. Nanavati, learned Senior Counsel has submitted that the proceedings regarding the acquisition of land may also be available in any other Department of the Government and as everything has to be gazetted, he has submitted that non- availability of record due to flood is not palatable and acceptable. He has further submitted that the burden is on the department authorities to prove that the property in question was acquired in accordance with law. He has submitted that the plea put up by th respondent authorities that compensation was received by the person concerned, is not a criteria to prove that the entire acquisition proceedings was exercised in accordance with law. By referring to the record of the case, he has vehemently submitted that though the matter was remanded back to the Collector with observation as to collection of necessary facts and documents, by passing order in remand application, the learned Collector even has not referred to the point raised in the order of remand.
7.1 Mr. Nanavati, learned Senior Counsel has also submitted that the affidavit produced on behalf of the respondent are only based on the fact that some acquisition proceedings was entered into but in absence of documentary evidence bare words that too on the letter of Taluka Development Officer, it cannot be assumed that in reality acquisition had occurred. Relying on the photograph produced, he has submitted that it clearly depicts that the land is not used by the concerned department since long Page 6 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 and the entire building is in dilapidated condition. Mr. Nanavati, learned Senior Counsel has further submitted that making of a revenue entry in 1997 is not supported by any documentary evidence and is clearly illegal exercise of power. Regarding the delay, he has vehemently stated that the action of making revenue entry in the year 1997 of the acquisition of the land in the 1965, is not a reasonable period. While relying upon the following decisions, he has submitted to allow the present petition and set-aside the impugned orders passed by the concerned authorities:
i) In the case of D.B. Basnett (Dead), Through Legal Representatives v. Collector, East District, Gangtok, Sikkim and Another, reported in (2020) 4 SCC 572.
ii) In case of Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel and Ors, reported in 2020 (1) G.L.H 261.
8. Ms. Dhwani Tripathi, learned AGP for the respondent State has vehemently supported the order of the revenue authority and has submitted that no error has been committed by both the authorities. She has also submitted that the land is still open and the petitioners have even not initiated any action for 40 years. She has submitted that earlier the land was acquired in 1965 and now it is being used for health purpose and the authority has not committed any error in mutating the entry in favour of the respondents. She has submitted that if petitioners are aggrieved by such entry and the possession of the respondent over the land, then they should approach the Civil Court for establishment Page 7 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 of their rights with regard to the land in question. She has submitted that since the compensation was paid, it could be presumed that the authority has properly undertaken the proceedings for acquisition of the land. She has submitted that since there was heavy flood at the relevant point of time in Surat, all the records pertaining to the land in question has been destroyed and is not available in any office. She has submitted that the present petition is devoid of any merit and be dismissed.
9. Mr. Munshaw, learned advocate for the respondent No.4 has relied upon his written submission and has submitted that the land which was acquired for Primary Health Centre (PHC) by award which was published in 23.9.1965 after following due procedure laid down under the provision of the Land Acquisition Act. He has also submitted that a PHC was constructed and established on the land in question immediately. He has submitted that land in question is in possession of Surat District Panchayat since then, and a Primary health Centre sanctioned by the Government of Gujarat was established is there since 1965 with full staff including Medical Officer (Class-II) and Para- medical staff. He has submitted that respondent No.4 has addressed a letter dated 14.11.1996 requesting for necessary mutation entries with regard to the land in question in the revenue record and thereupon a mutation entry No. 2155 was passed in revenue record on 21.1.1997 and it wa also reflected in the Village Form No.6. He has submitted that the possesion of the land is with Surat District Panchayat and it has put up construction of super structure thereon initially for Primary Health Centre and thereafter for staff quarters and hostels. He Page 8 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 has submitted that the award of 1965 has never been challenged by the original land owners and it has been continuously being used for public purpose since more than 40 years. He has heavily relied upon the entry in the village Form No.7/12 and has submitted that it reflects that the land in question is acquired through award dated 10.11.1965. He has submitted that the revenue authority has not committed any error in passing the order rejecting the appeal of the present petitioner. According to him, the petition is devoid of merits and the same may be dismissed.
10. In rejoinder, Mr. Nanavati, learned Senior Counsel has submitted that the version and submission of the respondents have no legal basis as no documentary evidence suggest acquisition of the land in question was ever produced before the revenue authority nor it is produced in this matter. He has vehemently submitted that whatever is produced is just a letter. He has also submitted that merely by writing such letter, a civil right of the petitioner cannot be frustrated.
11. In the case of D.B. Basnett (Dead), Through Legal Representatives v. Collector, East District, Gangtok, Sikkim and Another (Supra), the Supreme Court has made following observations from Para-13 to 19, which are as under:
"13. That brings us to the question whether the process of acquisition had been followed in accordance with law. No notification has been shown to us of the intent to acquire land under Section 4, or any other declaration thereafter. In fact what is claimed before us, as also before the courts below, is that no records are available in respect of the acquisition process. This obviously puts the respondent State in a difficult situation, which was sought to be got over by only relying on a Page 9 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 consent having been obtained for acquisition and the compensation having been paid, as determined. On the aspect of the compensation, only a covering letter is available, and not the actual receipt. We have also observed aforesaid that an unusual process of making payment in cash is claimed to have been adopted, and the amount is not an insignificant amount, if we look at the year of acquisition. We even gave a further opportunity to the authorities to show, as to from which account this compensation was withdrawn by the Collector, but it appears that there is no proof even of the withdrawal of the amount, much less payment of the compensation. The letter dated 20.3.1980 of late Man Bahadur Basnett is no doubt a no- objection to the acquisition of land, but provided compensation was paid subsequently. This letter does not obviate the need to furnish proof of the process for acquisition of land or for the determination of compensation, under the said Act. There cannot be a presumption of acquisition without following the due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. Not an iota of evidence has been laid in support of any of these aspects, except the willingness of late Man Bahadur Basnett to permit the land to be acquired on payment of compensation, the forwarding of the amount by the Land Revenue Department to the District Collector through a cheque, and thereafter a letter from the Collector/respondent No.1 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found). There is, thus, absence of both primary and secondary evidence.
14. We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed.
15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 18942 (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful3. The law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed.
16. We find a detailed discussion about the law as it evolved and the rationale for the said purpose in Vidya Devi of which the relevant paragraphs read as under:Page 10 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022
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"12.1. The Appellant was forcibly expropriated of her property in 1967, when the right to property was a fundamental right guaranteed in Part III of the Constitution. Article 31 guaranteed the right to private property (The State of West Bengal v. Subodh Gopal Bose), which could not be deprived without due process of law and upon just and fair compensation.
12.2. The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi & Ors. v. M.I.D.C. ) in a welfare State, and a Constitutional right under Article 300A of the Constitution. Article 300 A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A, can be inferred in that Article (K T Plantation Pvt. Ltd. v. State of Karnataka ).
12.3 To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300 A of the Constitution.Reliance is placed on the judgment in Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai (2005) 7 SCC 627,wherein this Court held that:
" 6. ... Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid." (emphasis originally supplied) 12.4 In N. Padmamma v. S. Ramakrishna Reddy , this Courtheld that:
"21. If the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right. The provisions of the Act seeking to divest such right, keeping in view of the provisions of Article 300A of the Constitution of India, must be strictly construed."
12.5 In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P.& Ors., this Court recognized the right to property as a basic human right in the following words:
"30. It is accepted in every jurisprudence and by different political thinkers that some amount of property right is an indispensable safeguard against tyranny and economic oppression of the Government. Jefferson was of the view that liberty cannot long subsist without the support of property." Property must be secured, else liberty cannot subsist" was the opinion of John Page 11 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 Adams. Indeed the view that property itself is the seed bed which must be conserved if other constitutional values are to flourish is the consensus among political thinkers and jurists."
12.6 In Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp. 1 SCC 596 this Court held as follows:
"48. ...In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300A. In other words, if there is no law, there is no deprivation."
12.7 In this case, the Appellant could not have been forcibly dispossessed of her property without any legal sanction, and without following due process of law, and depriving her payment of just compensation, being a fundamental right on the date of forcible dispossession in 1967.
12.8 The contention of the State that the Appellant or her predecessors had "orally" consented to the acquisition is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State. 12.9 In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors. wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
12.10 This Court in State of Haryana v. Mukesh Kumar held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension."
17. There is also a discussion in the judgment on the aspect of delay and laches, which is as under:
"12.12. The contention advanced by the State of delay and laches of the Appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of Page 12 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
12.3 In a case where the demand for justice is so compelling, a constitutional Court would exercise its jurisdiction with a view to promote justice, and not defeat it (P.S. Sadasivaswamy v. State of T.N. 12.14 In Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors., this Court while dealing with a similar fact situation, held as follows:
"11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants without any sanction of law. The Appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode."
18. The aforesaid legal principles do not leave the respondents with any defence in the given facts of the case.
19. The result of the aforesaid would be that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. The appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them. We are strengthened in our observations on account of the judgment of this Court in LAO v. M. Ramakrishna Reddy,5 where it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published.
12. In case of Patel Ramanbhai Mathurbhai v. Govindbhai Page 13 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 Chhotabhai Patel and Ors, it is observed in Paras-54 to 56 as under:
"54 The'burden of proof' means a party's duty to prove a disputed assertion or charge. The 'burden of proof' includes both 'burden of persuasion' and the 'burden of production'. The 'burden of persuasion means the duty imposed on a person to convince the fact finder to view the facts in a way that favours that person. The 'burden of production' is the duty imposed on the person to introduce enough evidence on a issue to have the issue decided by the fact finder, in that person's favour. The party having the 'burden of proof' must introduce some evidence if he wishes to get a certain issue decided in his favour. The 'burden of proof', therefore, denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law (Black's Law Dictionary, 7th Edition).
55 According to Phipson, who is considered to be an authority on the Law of Evidence, the phrase, 'burden of proof', has three meanings, namely, (I) the persuasive burden, the burden of proof as a matter of law and pleading the burden of establishing a case, whether by preponderance of evidence or beyond a reasonable doubt;
(ii) the evidential burden, the burden of proof in the sense of adducing evidence; and (iii) the burden of establishing the admissibility of evidence. While persuasive burden i.e. onus probandi never shifts and is always stable, the evidential burden may shift constantly, according as one scale of evidence or other preponderates.
Onus probandi rests upon the party, who would fail if no evidence at all is adduced. The general principle of burden of proof that he who invokes the aid of law should be the first to prove his case may be affected by statutory provision, e.g. in a case where the matters within the knowledge of the person against whom a proceeding is initiated, like the proceeding under the provisions of the 1946 Act, as it will not only be difficult but also impossible for the State, at whose instance Page 14 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 reference is made to the Tribunal, to first lead evidence on the question as to whether a person against whom such proceeding is initiated is a foreigner or not.
56 The principles discernible from the above referred decisions may be summarised as under:
[a] The general principles of law that can be gainfully culled out from the judicial pronouncements noted above is that the burden of proof cast under Sections 101 and 102 of the Indian Evidence Act, 1872 is the persuasive burden or the onus probandi. The persuasive burden to prove and establish the case always lies upon the plaintiff and the said burden never shifts upon the defendant. What may, however, shift is the onus to lead evidence in the sense that once the plaintiff side succeeds in prima facie establishing his pleaded case by leading evidence, the onus will then shift upon the defendant side to lead evidence so as to disprove the case. The parties may also have to discharge the burden of establishing the admissibility of the evidence by leading evidence in respect thereof. The initial burden to establish the basic allegations made in the plaint constituting the foundational facts, regardless of whether such assertion is couched in the affirmative or in the negative, would undoubtedly lie upon the plaintiff and the failure to discharge the said burden must lead to the dismissal of the suit."
[b] The burden of proof on the pleadings should not be confused with the burden of adducing evidence.
[c] Pleading is not evidence, far less proof.
[d] The rule that the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it, is not one of the universal applications and there may be exception thereto.
[e] The inference of fraud can be drawn only from the positive materials on record and cannot be based on speculation and surmises. However, the suspicious circumstances, however, strange the co-incidences and however grave the doubts, they alone cannot take place of proof of Page 15 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 fraud.
[f] The evidence of fraud must be sufficient to overcome the natural presumption of honesty and fair dealing. It is not to be presumed or inferred lightly.
[g] When the plaintiff comes before the Court with a case of forgery, then he has to prove the forgery in accordance with law. A mere assertion or allegation of forgery is not sufficient to shift the onus on the other side to establish that there is no forgery. [h] It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff. After having gone into the evidence, he cannot ask the Court not to look at it and act on it. The question of burden of proof at the end of the case when both the parties have tendered evidence is not of any great importance and the Court has to give a decision on a consideration of all the materials".
13. Now considering the averments made on behalf of both the sides coupled with the observations of the Apex Court as well as of this Court in the aforesaid decision, it is crystal clear that there is no record with respect to any kind of acquisition of the land in question ever being produced in the matter. It is pertinent to note that the entry of so-called acquisition of land has been entered into the revenue record after almost 32 years i.e. in the 1997. It is also revealed that such revenue entry No. 2155 came to be made on the basis of one communication dated 14.11.1996 addressed by the District Development Officer, Surat asking the authorities to enter the name of District Panchayat in the revenue record, on the basis of the alleged award passed way back on 23.9.1965 under the land acquisition, however, no record or material is produced. The version of the respondents that entire record has been destroyed in the flood in Surat, is not acceptable as being the award under the Land Acquisition Act, Page 16 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 everything has to be Gazetted. Therefore, the papers relating to entire proceedings of acquisition might have been available with other department, even it could have been produced by way of copy of Gazette. But nothing sort of the same has been produced in the matter. Further, had there been really acquisition of the land then definitely the land ought to have been used from the very beginning. Now, upon looking to the photographs which are at Page-25 to 27, it appears that there are shrubs grown upon the land and only on certain parcel of the said land some old and in dilapidated condition construction is seen. It also appears that the land is even not used. It is also pertinent to note that there is no record showing how much land was acquired from the original land. Further, it appears that before making entry in the revenue record in the year 1997, no notice was ever issued to the owner.
It was incumbent on the part of the authorities to inform the original owner especially when the mutation entry was to be entered after passage of almost 32 years. At this juncture, it is pertinent to note that the averment of the respondents have been categorically denied by the petitioner by way of rejoinder wherein it has been specifically alleged that the Primary Health Centre was established at other place than the land in question. In view of this averment, if we consider the Photograghs along with documentary evidence, it clearly reveals that evern in the year 2018, the land is having shrubs grown not only on the land, but also on the structure having dilapidated condition. It shows that the version of the petitioner has merits since the respondents have not produced any documentary evidence as to acquirement of the land in the year 1965 and as to what parcel of land was acquired and is being in use. Even, the entire exercise of Page 17 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022 C/SCA/12738/2016 JUDGMENT DATED: 21/12/2021 making entry in the revenue record as to passing of award in 1965 is not done in reasonable time. It is done after passage of 32 years, that too without notice to other side. Making of entry in revenue record is even an exercise beyond reasonable time. The original entries depicts that the land belongs to fore-father fo the petitioners and without hearing them, entry ought to not have been made by the authorities.
14. In view of the above, it clearly appears that the impugned orders passed by the revenue authorities are not sustainable in the eyes of law and the same deserved to be set-aside.
15. In view of the above, the present petition is allowed. The impugned order of respondent No. 3 i.e. Deputy Collector dated 6.7.2009 passed in Order No. RTS/REMAND/APPEAL NO. 171/2005, order dated 2.2.2011 passed in RTS/REMAN/ APPEAL No. 153/09 and the order dated 29.4.2016 passed by Secretary Appeals (SSRD) passed in MVV/HKP/SAT/23/2012 are hereby quashed and set-aside.
The entry in question being Entry No. 2155 stands cancelled accordingly.
Rule is made absolute to the aforesaid extent. No order as to cost. Direct service is permitted.
(DR. A. P. THAKER, J) SAJ GEORGE Page 18 of 18 Downloaded on : Wed Jan 12 12:52:39 IST 2022