Fulaji Hothaji Thakor vs State Of Gujarat & 3 on 26 September, 2017

[Cites 4, Cited by 0]

Gujarat High Court

Fulaji Hothaji Thakor vs State Of Gujarat & 3 on 26 September, 2017

Bench: J.B.Pardiwala

                    C/SCA/11370/2012                                                   ORDER




                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       SPECIAL CIVIL APPLICATION NO. 11370 of 2012

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                             FULAJI HOTHAJI THAKOR....Petitioner(s)
                                           Versus
                            STATE OF GUJARAT & 3....Respondent(s)
         ==========================================================
         Appearance:
         MR HARDIK C RAWAL, ADVOCATE for the Petitioner(s) No. 1
         MRS MH RAWAL, ADVOCATE for the Petitioner(s) No. 1
         MS NISHA THAKORE, AGP for the Respondent(s) No. 1
         MR ANUJ K TRIVEDI, ADVOCATE for the Respondent(s) No. 4
         NOTICE SERVED for the Respondent(s) No. 4
         NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
         ==========================================================

             CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                           Date : 26/09/2017


                                             ORAL ORDER

1 By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 24th July 2012 passed by the Special Secretary of the Revenue Department at Ahmedabad, by which the S.S.R.D. rejected the revision application filed by the applicants herein, thereby affirming the order of the Collector, Ahmedabad dated 15th September 2009.

2 The facts giving rise to this petition may be summarised as under:

2.1 It is the case of the applicants that since the time of their forefathers, they are in actual possession of the land bearing surveys Nos.270 and 271 respectively admeasuring 3 Acres 9 Gunthas and 5 Acres 35 Gunthas respectively situated in the village: Odhav, Taluka and Page 1 of 16 HC-NIC Page 1 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER City: Ahmedabad. According to the applicants, they are in possession of the land past almost ninety years. The subject land was a 'Jividar land', and the ancestors of the applicants herein were cultivating the same since 1929 on one year basis.

2.2 The case put up by the applicants is that in accordance with the government resolution of 1960, a person, who cultivates the 'Jividar land' i.e. the government land, should be granted the same after recovering a requisite amount. In spite of such resolution, the land was not granted in favour of the ancestors of the applicants.

2.3 An appeal No.2 of 1978 was preferred before the City Deputy Collector in this regard, which came to be dismissed on 30th August 1978.

2.4 Against the order passed by the City Deputy Collector, a revision application No.95 of 1978 was preferred before the Collector. The Collector ordered the Deputy Collector to decide the claim according to the government resolution dated 1st March 1960. But, in spite of such directions, the City Deputy Collector did not do anything.

3 The aforenoted facts would give a fair idea as regards the factual background of the matter. The record reveals that the history of this litigation is quite chequered. It appears from the materials on record that one Special Civil Application No.12236 of 2007 came to be filed before this Court by and large agitating the very same grievance, which is sought to be voiced in the present petition. The said petition came to be disposed of by an order dated 11th May 2007 in the following terms:

"1. Present Special Civil Application has been filed by the petitioner claiming to be in possession and cultivating land bearing Survey No. 270 situated at Odhav, Taluka and City : Ahmedabad for an appropriate direction and order directing respondent No.3 and its Officer, agents and Page 2 of 16 HC-NIC Page 2 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER servants not to take possession of the land bearing Survey No. 270 and 271 till the Appeal No. Vashi/934/1998 pending before the Respondent No.2 is finally decided.

2. It is the contention on behalf of the petitioner that as ?Jividar? the petitioner is entitled for allotment of aforesaid lands and initially the application was rejected by the City Collector, Ahmedabad by order dated 30.06.1981, therefore, the petitioner preferred suit by way of Regular Civil Suit No. 47 of 1982 before the Civil Judge (S.D.), Ahmedabad (Rural), which came to be dismissed, again the petitioner preferred appeal before the Joint District Judge, which also came to be dismissed by order dated 21.10.1992 and it is the contention on behalf of the petitioner that as it was observed that the Civil Court has no jurisdiction, the petitioner preferred appeal before the District Collector in the year 1998. It is submitted that the said appeal is still pending and in spite of that the respondents, more particularly, the Corporation is trying to construct compound wall and the rights of the petitioners will be vitally effected particularly when the petitioner is cultivating the land bearing Survey Nos. 270 and 271.

3. Shri R.M.Chhaya, learned Advocate appearing on behalf of the Ahmedabad Municipal Corporation has submitted that the present Special Civil Application is required to be dismissed considering subsequent development after 1991. He has submitted that with respect to the lands in question, Town Planning Scheme No.3, Odhav was submitted and the same has become final in the year 1994 more particularly on 02.09.1994 and the original Survey No.271 was given O.P.No. 75 and was finalized as Final Plot No. 110 and some portion of original land bearing Survey no. 270 has become final Plot Nos. 95 and 96 and 18 meters town planning road. It is further submitted by them that so far as Final Plot Nos. 95 and 96 are concerned, they are reserved for Shopping Center and School and Playground under the finalized Town Planning Scheme. It is also further submitted that the Corporation is in possession of the aforesaid plots since 1996 which is handed over to them by the Collector and E.S.I. Corporation. It is also further submitted that so far as Final Plot No. 110 is concerned the same is in possession of the Collector, Ahmedabad. He has also submitted that present Special Civil Application is required to be dismissed as the rights are now required to be considered and governed by the finalized Town Planning Scheme.

4. Shri Amit Patel, learned Assistant Government Pleader has submitted that so far as the order passed by the Collector is concerned, they are not having any particulars with regard to filing of any appeal by the petitioner. At this stage Shri Panchal, learned Advocate for the petitioner has submitted that the appeal was preferred in the year 1998 and the same was returned for want of certified copy of the order passed by the City Collector and subsequently they have preferred the appeal. Be that as Page 3 of 16 HC-NIC Page 3 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER it may. Considering the fact that the application of the petitioner was rejected in the year 1981 and thereafter, with respect to land bearing Survey Nos. 270 and 271, Town Planning Scheme No.3, Odhav was proposed and the same has become final in the year 1994 and original land bearing Survey No. 270 has been converted into final plot No.110 which is in possession of the Collector and so far as original land bearing Survey No.271 is concerned, the same has been converted into final plot Nos. 95 and 96 and they are reserved for shopping center and school and playground respectively and possession of which was handed over to the Corporation in the year 1996 by the Collector, Ahmedabad as well as E.S.I. Corporation and under the circumstances on finalization of Town Planning Scheme, rights of the parties are required to be governed and considered under the Town Planning Scheme which has become final.

5. Under the circumstances, and subsequent development even assuming that the appeal is preferred, the same has become infructuous. Even at this belated stage when for the lands in question, town planning scheme has become final in the year 1994, the claim of the petitioner if any is not required to be considered in view of the Gujarat Town Planning Act. There is no substance in the petition, the petition is required to be dismissed and accordingly it is dismissed. Notice discharged."

4 While rejecting the petition referred to above, a Coordinate Bench observed that at a belated stage, and more particularly, when the lands in question are a part of the Town Planning Scheme and such scheme having become final in the year 1994, the claim of the applicants herein was not tenable.

5 It appears that against the order passed by the learned Single Judge, a Letters Patent Appeal No.1459 of 2008 was filed and the same came to be disposed of by an order dated 3rd February 2009 in the following terms:

"Special Civil Application was preferred seeking a writ of mandamus directing the District Collector to dispose of Appeal No. Vashi/934/1998, pending before him. It is made clear that the said appeal be disposed of without delay, if not already disposed of. LPA and civil application stand accordingly disposed of."

6 It appears that, ultimately, the District Collector did decide the Page 4 of 16 HC-NIC Page 4 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER appeal and dismissed the same. The order attained finality. It also appears that, in the past, a Regular Civil Suit No.47 of 1982 was filed in the Court of the Civil Judge, Senior Division, Ahmedabad (Rural) at Ahmedabad for declaration and injunction. Such suit of the applicants was partly allowed vide judgment and decree dated 29th September 1989. The only relief, which was granted by the Civil Court, was that the State and its officers were restrained from taking over the possession of the land in question, except according to law. The other reliefs were declined and the suit was ordered to be dismissed. The First Appeal also came to be dismissed. Thereafter, the Second Appeal No.188 of 1993 came to be filed before this Court, which came to be dismissed vide judgment and order dated 26th February 1998. While dismissing the second appeal, this Court observed as under:

"1. This is plaintiff's Second Appeal.

2. Brief facts are that the plaintiff - appellant filed Suit seeking various reliefs. The first relief was declaration that the order passed by the Collector in Revision Application No.95 of 1978 is in operation; second relief was that it be ordered that the City Deputy Collector to implement the said order of the Collector in terms of Resolution of 1960 in favour of the plaintiff, next relief was permanent injunction restraining the defendant from taking possession of disputed plots Survey Nos. 270, area 3 Acres - 09 guntha and Survey No.271, area 5 Acres - 35 Gunthas situated in village Odhav, Taluka, City, District Ahmedabad; the last relief was declaration that the decision of City Deputy Collector dated 30.6.1981 is illegal, inoperative and void.

3. The case of the plaintiff has been that he, his father and forefathers were in actual possession of aforesaid two plots since last 50 years, and as such he has become tenant of Suit land. Originally the Suit land was Jividar land and plaintiff's ancestors are cultivating the same since 1929 on one year basis. According to Government Resolution of 1960 person who cultivates Jividar land I.e. Government land, should be granted the same after taking requisite amount. Inspite of said resolution the land was not granted to the plaintiff. So he preferred Appeal No.2 of 1978 before the City Deputy Collector which was dismissed on 30.6.1978. Against that Revision Application No.95 of 1978 was preferred before the Collector. The Collector ordered Deputy Collector to decide the claim as per Government Resolution dated 1.3.1960, but inspite of said direction the City Deputy Page 5 of 16 HC-NIC Page 5 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER Collector has not implemented order of the Collector. On 27.10.1980 plaintiff again requested the City Deputy Collector to implement order of the Collector, but the City Deputy Collector vide his letter dated 30.6.1981 decided against plaintiff. This order is said to be illegal. On 12.8.1981 Talati had issued notice to the plaintiff treating him to be unauthorised occupant. Thereafter the Suit was filed for the aforesaid reliefs.

4. The Suit was resisted by the defendant on the ground that the plaintiff is not in possession of the suit land and that theland belongs to Government and is included in T.P. Scheme and plot No.75/1 has been given in said scheme. It is denied that the plaintiff and his ancestors were in possession of the suit land since 1929. On the other hand it was pleaded that the land was given by the Government for hospital purpose to ESG Corporation and Talati in persuance of this order took possession of the land in suit on 5.11.1981. It is also denied that the Collector had given any direction to the Deputy Collector to grant land to the plaintiff. It is also the case of the defendant that the suit land is non agricultural land, hence it cannot be given for agricultural purpose.

5. The trial Court decreed the Suit partly granting injunction against defendants in limited manner restraining them from taking possession of the land in Suit, except according to law. Other reliefs were refused.

6. An Appeal was preferred which was dismissed. Hence this Second Appeal.

7. Following substantial questions of law were formulated in this Appeal :

(I) Whether on the facts established, the courts below are right in law in their interpretation of Government Resolution dated 1.3.1960 and in denying the privilege granted thereunder by the Government to the appellant ?

(ii)Whether the Courts below committed an error in not decreeing the suit of the appellant in toto even though the facts that the lands in dispute have been cultivated by the forefather of the appellant since 192930 on Ek Sali basis and that at present appellant has been cultivating the said land on the same basis were established on the record of the case ?

8. The learned Counsel for the parties were heard at length. Two substantial questions have to be decided in light of reliefs sought in the plaint and also in light of findings recorded by the Court below.

9. Learned Counsel for the appellant vehemently contended that since there is concurrent finding of fact of the two courts below that the plots in Page 6 of 16 HC-NIC Page 6 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER dispute were in occupation of the plaintiff and their forefathers since 1929 and further since the case of the plaintiff is covered by Para : 3(a) of Government Resolution No.L.N.D. 3960AI dated 1.3.1960 of Government of Bombay regarding disposal of waste land the two Courts below committed error in not decreeing the Suit in toto, but simply granted part of the relief, viz. Injunction not to dispossess the plaintiff, except in accordance with law. Learned Counsel for the appellant further contended that after the finding of fact recorded by the two courts below regarding plaintiff's continuous possession since 1929, they committed error in not giving direction to the Deputy Collector to grant land in view of Government Resolution in favour of the plaintiff and this amounts to question of law which can be considered by this Court in Second Appeal. He also contended that the view of the lower Appellate court that the plaintiff may file Appeal against the said order is misconceived inasmuch as there is no provision for such Appeal against order of the Deputy Collector and the Civil Court has jurisdiction to go into the validity of order of the Deputy Collector. He further contended that the suit is not barred by Section 11 of the Bombay Revenue Jurisdiction Act and that there is no provision for Appeal under Section 203 of the Bombay Land Revenue Code against such order. In my opinion, it is difficult to accept the contention that there is no provision for Appeal. Section 203 of the Bombay Land Revenue Code reads as under :

"203. In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer's decision or order or not."

It is clear from the above provision that Appeal shall lie from any decision or order passed by a Revenue Officer under this Act or any other law for the time being in force, to that officer superior. The Government Resolution has also its statutory force. Hence, it cannot be said that no Appeal lies against the order of the Deputy Collector. The plaint itself shows that when the land was not granted to the plaintiff he preferred Appeal No.2/78 before the City Deputy Collector. It was dismissed on 30.6.1978. Against that Revision Application No.95/78 was filed before the Collector. The Collector issued certain directions in that revision and the Deputy Collector, acting in accordance with the direction, refused to grant land to the plaintiff. Thus, according to the plaint allegation itself the order of City Deputy Collector was revisable and also appealable.

10. It may also be mentioned that instructions regarding permanent disposal of Government waste land have been annexed along with Resolution dated 1.3.1960. The relevant portion of instruction can be quoted below :

Page 7 of 16

HC-NIC Page 7 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER "Before permanent disposal is undertaken it is necessary to know what lands are available for disposal. The Collectors should, therefore, prepare a list of lands available for disposal. This list is hereafter referred to as "the Final List." It is necessary to do this to avoid at the time of disposal of Government waste lands claims, representations and appeals to Government from various parties for the lands proposed to be disposed of. Experience has revealed that considerable delay, resulting in waste of labour, time and money, occurs..............."

This instruction also indicates that representations and appeals to the Government from various parties for the lands proposed to be disposed of were contemplated. Admittedly no Appeal was filed against the impugned order of the Deputy Collector. Hence Civil Court could not sit in Appeal over the said decision of the Deputy Collector.

11. Even if argument of the learned Counsel for the appellant is accepted that there is no provision for Appeal against the impugned order dated 30.6.1981 still the Civil Court can not sit in Appeal over the said order. At the most Civil Court could have examined whether the said order was within the jurisdiction of the City Deputy Collector or not. If the order was within jurisdiction of the City Deputy Collector the correctness and legality of the said order cannot be seen by Civil Court. It is only jurisdictional defect in the order which can be seen by the Civil Court and since there is no jurisdictional error in the impugned order the two courts below rightly refused to hold that order dated 30.6.1981 is illegal.

12. On a plain reading of the said order it is further clear that it does not suffer from any jurisdictional error. There is concurrent finding of the two courts below that the Collector has never directed the Deputy Collector to grant land in dispute in favour of the plaintiff. On the other hand the Collector has simply directed in revision to the Deputy Collector to decide the claim of the plaintiff in accordance with resolution dated 1.3.1960.

13. The said resolution as mentioned above, in Para : 3(a) provides for priorities for grant of land in areas other than the Scheduled areas. This resolution relates to disposal of waste land. Waste land has not been defined in this resolution, but the words "waste land" include the land which is of no utility to the Government. However, if certain land has been included in the master plan and has been setapart for residential colonies the said land cannot be said to be waste land nor it can be said to be agricultural land. There is no dispute that master plan has been prepared. It is the finding of the trial Court that the land is included in master plan and the master plan has not been challenged. It is further finding of the trial Court that the land has been reserved for residential colony. In the written statement also the case of the defendant is that the land is non agricultural and it cannot be given for agricultural purpose. Keeping in view these factors if the City Deputy Collector refused to grant disputed Page 8 of 16 HC-NIC Page 8 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER land to the plaintiff's appellant he committed no jurisdictional error or illegality. The priorities mentioned in Para : 3(a) of the aforesaid resolution will be attracted only when it is established that the land is a waste land. Merely on account of existing Eksali Lessees of the Government the disputed land cannot be said to be waste land especially when it has been earmarked in the master plan for residential purpose.

14. It may also be mentioned that Section 4 of the Bombay Revenue Jurisdiction Act, 1876 bars the jurisdiction of the Civil Court in such matter. The second part of Section 4(f) of the said Act provides that subject to the exception hereinafter appearing no Civil Court shall exercise jurisdiction as to any of the following matters.............................respecting the occupation of waste or vacant land belonging to the Government as appearing in second part of Section 4(f) of the Act. Thus, the claims against the Government respecting the occupation of waste or vacant land belonging to the Government is barred under this Section.

15. Section 11 of the Bombay Revenue Jurisdiction Act, 1876 also bars such suit inasmuch as the Appeal against the order of Deputy Collector as intended in the instructions appended to the resolution dated 1.3.1960 was not filed by the plaintiff.

16. Since in the appended instructions itself there is clear intention of provision for Appeal, Section 11 will apply. The case of Muman Habib Nasir Khanji V/s. State of Gujarat reported in XI 1970 G.L.R. 307 is distinguishable on facts inasmuch as in that case it was found that there was no provision for Appeal to the State Government under Section 203 of the Code and the Government can only exercise revisional powers under Section 211 of the Code.

17. Likewise the case of Ramrao Jankiram Kadam V/s. State of Bombay and others reported in AIR 1963 SC 827 is also distinguishable on facts. In this case the Suit was filed to declare as void a revenue sale in favour of the Government at a nominal bid of Rs.1/ in persuance of an administrative direction of the Collector. It was held that such Suit is not barred by Section 11 of the Bombay Revenue Jurisdiction Act. The distinguishing feature is that in this case the administrative direction of the Collector was challenged in a Civil Suit, but in the case before me it is not administrative direction which is being challenged, rather an order passed by the Deputy Collector in compliance of the order of the collector and keeping in view the Government Resolution of 1.3.1960.

18. For the reasons given above there is no jurisdictional error or apperant illegality in the order of the City Deputy Collector dated 30.6.1981. As such no declaration can be granted that this order is illegal and void.

19. Since the order of the Collector was complied with by the City Page 9 of 16 HC-NIC Page 9 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER Deputy Collector the said order of the Collector has exhausted itself and no declaration can be given that the order of the Collector in Revision Application No.95 of 1978 is still in operation.

20. Next relief that the City Deputy Collector be directed to implement the order of the Collector in terms of Resolution of 1960 has become infructuous after finding that the order of the City Deputy Collector does not suffer from any jurisdictional error or patent illegality.

21. The two courts below have granted injunction restraining the defendants from taking possession of the suit land from the plaintiff, except in accordance with law. By this substantial justice has been done to the appellant inasmuch as his long possession has been taken into account and his forcible dispossession has been protected.

22. In the result there is no merit in this Appeal which is hereby dismissed. Parties to bear their own costs of this Appeal."

7 On behalf of the Ahmedabad Corporation, a reply has been filed inter alia stating as under:

"6 The deponent further submits that once the Town Planning Scheme has implement then, Corporation is bound to give the Final Plot to the owner of the land on the basis of the Extract of 7 and 12 and Fulaji Hothaji Thakor are no where mentioned in the Extract of 7/12. Herein AnnexureA is the copy of extract of 7/12.

7 The deponent further states that on dated 24.07.1996, Corporation has already sent the notice through R.P.A.D under section 67 of the Town Planning Act for obtaining the possession of Final Plot No.101 to the E.S.I. Corporation and for the final plot No.110 to the Ld. Collector of the Ahmedabad.

8 The deponent further states that the said land in question which is revenue survey No.270 and 271 are running in the name of of the Government of Gujarat and which is at present covered under Town Planning Scheme and is given Final Plot No.110 and No.101.

9 The deponent further states that in Town Planning plan the area is under residential zone and even Final Plot No.110 is allotted to the owner i.e. the Government of Gujarat, and Final Plot No.101 is allotted to the owner i.e. the E.S.I. Corporation.

10 The deponent further states that the petitioner has suppressed the fact that he had filed the Special Civil Application No.12236 of 2007 in this Hon'ble Court (Coram : Hon'bvle Mr. Justice M.R. Shah) and on dated 11.05.2007, this Hon'ble Court had pleased dismissed the same. Herein Page 10 of 16 HC-NIC Page 10 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER AnnexureB is the copy of order dated 11.05.2007 passed by this Hon'ble Court."

8 On behalf of the State, an affidavitinreply has been filed duly affirmed by the City Deputy Collector inter alia stating as under:

"7 I say and submit that case of the petitioner is not correct that his forefathers were "JIVAIDAR". It is respectfully submitted that as per Government Resolution the land had vest into Government. Thereafter by way of auction on one year basis the land was given to Nagarji Raiji. Thereafter it was cultivated by Hothaji Nagarji.

8 I say and submit that the present petitioner had started cultivating said land without any permission and he continued for few years. Thereafter he had applied for grant land to him on permanent basis. The Deputy Collector rejected his application by order Dt. 30.06.1978. The petitioner had approached Collector against the same and his appeal came to be rejected by order dated. 27.10.1979.

9 I say and submit that though appeal of the petitioner was rejected he approached Deputy Collector to comply with order of Collector. The Deputy Collector again rejected his application with specific reason that now there is Town Planning Scheme introduced in the area and the area is in residential zone no permission for agricultural use can be given.

10 I say and submit that the petitioner had filed suit against the same and had lost up to this Hon'ble Court in second appeal. After judgment in second appeal in the year 1998 the petitioner again approached Collector in 1998 challenging order dated 30.06.1981.

11 I say and submit that the said appeal was pending at that time the petitioner had approached this Hon'ble Court by filing Special Civil Application No.12236 of 2007 by order dated 11.05.2007 same came to be rejected. The petitioner had filed Letters Patent Appeal No.1459 of 2008. The same came to be disposed of by order dated 03.02.20098 where by it was directed to decide pending appeal of the petitioner.

12 I say and submit that the petitioner has challenged order dated 30.06.1991 in 1998 only after loosing in second appeal and therefore his appeal was time barred yet the Collector had decided the appeal after considering submissions of the petitioner and the same to be rejected by order dated 15.09.2009. I say and submit that thereafter the revision was preferred which came to be rejected by the impugned order.

13 I say and submit that the authorities have considered all the Page 11 of 16 HC-NIC Page 11 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER material on record and passed the order and therefore same is not required to be inferred with by this Hon'ble Court.

14 I say and submit that the land in question had vest into government even as per record produced by the petitioner is between 1974 to 1982 shows that ownership is of Government and petitioner was cultivating. It is also required to be taken into consideration no document showing possession after 1981 is produced at all.

15 I say and submit that in town planning plan the area is under residential zone and even final plot No.110 is allotted to the said land and therefore no relief can be granted to the petitioner. It is also required to be taken into consideration that as area is under residential zone no permission for cultivation can be granted.

16 I say and submit that the land is of ownership of Government and petitioner had cultivated the same unathorizedly for sometime that will not give any right to petitioner over the land.

17 I say and submit that petitioner has relied upon some orders in favour of certain other persons and said that land has been given to them as per Government Resolution of 01.03.1960. In fact those persons are granted land in 1957 i.e. before Government Resolution of 01.03.1960 came into existence and therefore the same cannot be relied upon by petitioner. Therefore the petition is devoid of any merits and same is required to be rejected."

9 The S.S.R.D., while rejecting the revision application, held as under:

"Considering the submissions of the applicant, the impugned order/ previous orders, it appears that lands bearing Survey No. 270 and 271 situated at Moje Odhav, Taluka city, was demanded on permanent basis before the Collector. The City Deputy Collector had rejected the same vide his order no. CDC/R.E.V./Appeal/2/78 on 30/06/1978. Against the same, as applicant preferred an appeal before the Collector, Ahmedabad, Collector rejected the appeal vide order no. L.B./Appeal/95/78 on 27/10/1979. Such observation was made that the lands belonging to Jividar Pasayata which are vested with the Government as per the resolution of Government dated 21/05/1956 and the same is required to be disposed of as per the resolution dated 01/03/1960 in respect of Government Waste Land. On the basis of same the City Deputy Collector had done necessary procedure and sent letter no. JMN/V.2336 dated 30/06/1981rejecting the demand of the applicant to get possession of the agricultural land as the suit lands are located in Metropolitan area and Page 12 of 16 HC-NIC Page 12 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER residential zone and it has been ordered not to permanently allocate such lands for agricultural purpose. Being aggrieved by the reply dated 30/06/1981 of City Dy. Collector, applicant filed suit application to Collector Ahmadabad on 01/05/1998. The collector rejected the appeal vide order no. CB/Land/1/Appeal No. 934/1998 dated 15/09/2009 and confirmed the the decision of City Deputy Collector dated 30/06/1981. Being aggrieved by the impugned order dated 15/09/2009 of Collector, the applicant filed review application on 03/11/2009 before this office. The lands in question of Jividar were registered in the name of Government. As per Government's resolution dated 21/01/1956, the same has been entered as government waste land. Entry no. 1536 has been made in this regard. And Said entry has been sanctioned on 22/12/1956. The applicant has not taken any action with regard to land in question prior to 22/12/1956. T.P. Scheme no. 3 Odhav applies to lands in question. Some portion of the survey No.270 has become final plot No. 95, 96 and 18 meters land has been gone into T.P. Road. Survey No.271 has become plot No.110. As mentioned in the judgment of the Collector, the final plots Nos.95 and 96 are reserved for the Shopping Center, School and Play Ground in the T.P. and the same are in the possession of the Municipal Corporation, whereas the final plot No.110 is in the possession of the Collector. The City Deputy Collector has rejected the demand of the lands in question vide letter/order dated 30/06/1981, as the lands in question are located in Metropolitan area and residential zone and it has been ordered not to permanently allocate such lands for agricultural purposes. Hon'ble High Court has delivered a detailed judgment regarding demand of the suit land in the Second Appeal No.188/1993 on 26/02/1998 and no interference has been made with the order passed by the City Deputy Collector. The Civil Court has no jurisdiction to entertain the said matter. Mumbai Parchuran Prize Abolition Act - 1955 was repealed on 31/03/2000. As the T.P. Scheme applies to the disputed lands, they are in the possession of the Municipal Corporation and the Collector. The lands are of the Government since 1956. Hence the same cannot be allocated to the applicant for agricultural purpose or any circular pertaining to agricultural purpose cannot be applied in that regard.

As it does not appear to be interfered with the impugned order dated 15/09/2009 passed by the Collector, Ahmedabad, the following order is passed."

10 Against the concurrent findings recorded by the two revenue authorities, the applicants are here before this Court with this petition under Article 227 of the Constitution of India.

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HC-NIC Page 13 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER 11 The principal argument of Mr. Rawal, the learned counsel appearing for the applicants is that his clients are in possession of the land in question past about ninety years. The forefathers were put into possession of the land as a 'Jividar'. The land was being cultivated as a 'Jividar land'. By virtue of long and settled position, a right has accrued in their favour to hold the land on regular basis. He would submit that, in the past, the government has given benefits of few resolutions to many identically situated persons in this regard.

12 In such circumstances, Mr. Rawal, the learned counsel for the applicants prays that there being merit in this application, the same be allowed and the impugned orders be quashed.

13 The submission of the learned counsel appearing for the Corporation and the learned Assistant Government appearing for the State is that no error, not to speak of any error of law could be said to have been committed by the revenue authorities in passing the impugned orders. No interference is warranted at the hands of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

14 It is submitted that this petition should not be entertained only on the ground that the same is hit by the principle of res judicata, and if at all the principle of res judicata is not applicable, then at least, the principle of issue estoppel would definitely apply. Such submission is canvassed on the basis of the order of the learned Single Judge referred to above in the earlier round of litigation.

15 It is submitted that even according to the revenue record, the land is being shown as the ownership of the government. It is pointed out that in the Town Planning Scheme, the land is covered under the Page 14 of 16 HC-NIC Page 14 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER residential zone and the final plot has also been alloted. It is submitted that once the Town Planning Scheme is implemented, the Corporation is duty bound to give the final plot to the owners of the land on the basis of the 7/12 extract. Neither the name of Fulaji Hothaji Thakor nor the applicants figure in the extract of 7/12.

16 It is submitted that way back in the year 1996, the Corporation had issued notice through the R.P.A.D. under Section 67 of the Town Planning Act for obtaining possession of the Final Plot No.101 to be handed over to the E.S.I. Corporation.

17 Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no case worth the name is made out for interference with the impugned orders in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. The facts, as stated above, speak for themselves. I am of the view that the applicants have no right much less any legal right to hold the land. Although it has been vociferously submitted that the possession has been taken over and handed over to the E.S.I. Corporation, yet this fact has been disputed by the learned counsel appearing for the applicants. According to him, his clients are still in possession of the land in question. I do not intend to go into this issue. In any view of the matter, while dismissing the second appeal, this Court has already observed that the applicants are protected in a way that if at all the possession is to be taken over, the same will be in accordance with law.

18 In view of the above, this petition fails and is hereby rejected. Notice stands discharged.

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HC-NIC Page 15 of 16 Created On Sat Oct 07 07:06:38 IST 2017 C/SCA/11370/2012 ORDER (J.B.PARDIWALA, J.) chandresh Page 16 of 16 HC-NIC Page 16 of 16 Created On Sat Oct 07 07:06:38 IST 2017

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