Gujarat High Court
Shankarbhai Harjibhai ... vs Special Secretary & on 12 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/4639/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4639 of 2012
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SHANKARBHAI HARJIBHAI PRAJAPATI(KUMBHAR)....Petitioner(s)
Versus
SPECIAL SECRETARY & 1....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR. SHARMA, ASST. GOVERNMENT PLEADER for the RESPONDENT(s)
No. 1-2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/09/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order dated 13th March, 2012 passed by the S.S.R.D at Ahmedabad, by which, the S.S.R.D rejected the revision application filed by the applicant herein, thereby affirming the order passed by the Collector, Surendranagar dated 17th February, 2006.
2. The facts of this case may be summarized as under;
2.1 Indisputably, the applicant is in an unauthorized occupation and possession of the land bearing Revenue Survey No.46/1 Paiki, admeasuring 111 square meters, situated at the village Nana Paliyad, Taluka: Chotila, District: Surendranagar. Indisputably, without any permission of any authority, the Page 1 of 18 HC-NIC Page 1 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER applicant has constructed a house and is also utilizing the open land for some business of poultry. The applicant preferred an application dated 23rd April, 2003 to regularize the possession of the land and the construction put up on the land in question. The Collector, by communication dated 17th February, 2006, declined to regularize the construction and the encroachment assigning the following reason;
"Encroachment is at a distance of 30 metres from the mid line of the National Highway. Ribbon Development Rules are violated, if the encroachment is regularized, therefore, it is not accepted."
2.2 Being dissatisfied with the decision of the Collector, the applicant went before the S.S.R.D by filing the revision application. The S.S.R.D rejected the revision application holding as under;
"(3) Revision application of the applicant, submission made at the time of hearing, order of Collector and case papers have been carefully perused.
The applicant in this case has made unauthorized encroachment in the land bearing Survey No. 46/1 Paiki admeasuring 111.00 Sq.metres, situated at Moje Chotila, Taluka Chotila. The applicant has requested the Collector to regularize the said encroachment vide his application dated 23/4/2002. The Collector has rejected the application of the applicant, as there would be violation of Ribbon Development Act by regularizing the encroached land. Aggrieved by this, the applicant has preferred the present Review Application. Looking to the papers of this case, the Mamlatdar, Chotila has passed an order to initiate procedure regarding the unauthorized encroachment made by the applicant in this case as per Section-61 of the Land Revenue Code ordered on 21/12/2002 in Case No. 3/2002 to remove encroachment and to recover a penalty of Rs. 250/- and rent. As per the details of Village Form No. 8-A, the land bearing Land Page 2 of 18 HC-NIC Page 2 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER Holding Account No. 102, Survey No. 46/1 Paiki admeasuring 534 Acre-36 Guntha has been registered in the name of the Government. There would be violation of the Government Resolutions and provisions, if 111.00 Sq. metres of land out of the Government waste land is regularized. The Collector has rightly rejected the demand of the applicant. Applicant has made a representation that as the land in dispute is at a distance of 42 metres from the mid point of the road, Ribbon Development Rules are not violated. As the applicant is a landless person belonging to rural worker class and other backward class, he has made a representation to regularize the encroachment. At the time of regularizing the encroachment made on the Government waste land or in view of the provisions of the Government Resolutions and Circulars in connection with granting of the land as adjoining land from the Government waste land, the cultivable Government waste land is allocated on priority basis as per the provision of the compiled resolution of the Revenue Department of the Government No. JMN-3988-3290(1)-A dated 15/2/1989, on tenancy basis, but the cultivable Government waste lands, which have not been given on tenancy basis and which are waste and fragmented for the purpose of agriculture due to their small size, uneven shape or location and its total area is less than the standard area as prescribed under the the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, and as such land cannot be disposed of independently and if adjoining land account holder makes a demand to give such land as adjoining land, it is to be taken into consideration to initiate procedure. The lands have been granted against prevailing policies of Government from the Government waste land having large Survey Number/large area by misinterpreting the provisions of this Resolution, about which before giving the adjoining land for the purpose of agriculture, the Collector and District Development Officer have been instructed to adopt following necessary procedure considering the directive instructions as per Resolution of the Revenue Department of the Government No. JMN-3997-2098-A, dated 25/9/1997.
1) Such Government waste lands for the agricultural purpose shall be considered to be given as adjoining land for the purpose of agriculture, as Page 3 of 18 HC-NIC Page 3 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER they remains as waste due to their small size, uneven shape or location and its total area is less than the standard area as prescribed under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
2) If such government waste land of fragmentation type, i.e. jirayat land, if found less than two acres and when horticultural land is below one acre, procedure should be done to dispose of the waste land of survey numbers of such area as adjoining land.
3) When such fragment land is adjoining to only one owner of the land and it is not adjoining to anyone else and if that owner is willing to purchase it, it should be granted at existing market rate, in a way, so that, his holding would not exceed the limit.
If it is not so, it should be disposed of by considering priority of demand, merits and after hearing surrounding land holders.
4) Before deciding the lands as adjoining lands, priority should be fixed according to the resolution dated 01/03/1960 and 15/02/1989 of Revenue Department and accordingly, it should be disposed of. Therefore, the provisions of the said resolution should be followed scrupulously and land should not be given directly. But, only after ascertaining at the local level as to whether the land is of fragmentation type or not, it should be disposed of as per the policy of the resolution by taking it on supplementary list.
5) The adjoining lands can not be granted by fragmentation or forming parts from the waste lands of survey numbers having area more than two acres and it may also not be granted.
6) Government waste lands which are closely situated to the National Highway, State Highway or major District roads are very valuable. Such lands at a distance of two kilometers, one kilometer and half kilometer respectively should not be granted as adjoining land to anybody.
Page 4 of 18 HC-NIC Page 4 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER 7) Lands situated in the area of Urban
Development Authority, G.I.D.C., Industrial Zone, Villages of District / Taluka places, Municipal Areas (Urban areas) which are important due to their location and the land situated within the radius of two kilometers of the City having Non-agricultural potentiality and suitable for industry and are valuable should not be given.
8) Generally, according to the rule, one person of the family may be given such adjoining land. But, in case, where two or three members of a family who already have separate land accounts should not be given such adjoining land.
(9) Lands adjoining to railway line, big pond, dam or the land near river‐bed should not be granted as adjoining land for agriculture as well as if village roads and passage of land‐holders are affected by granting such adjoining lands, it should not be disposed of.
(10) At the time of granting a land as adjoining land, it should be disposed of after recovering occupancy price considering maximum price after obtaining its market price through valuer as well as considering sales register of five years of the village.
2.2 Considering aforesaid facts, below mentioned order is passed by rejecting revision application as applicant's demand is not acceptable."
2.3 Being dissatisfied with the order passed by the S.S.R.D, the applicant is here before this Court with this petition under Article 227 of the Constitution of India.
3. The learned counsel appearing for the applicant vehemently submitted that the reason assigned by the Collector declining to regularize the encroachment is factually wrong. He would submit that even, according to the map Page 5 of 18 HC-NIC Page 5 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER prepared by the Circle Officer, the construction is at a distance of 36.5 square meters. The learned counsel would submit that many orders have been passed in the past regularizing the occupation and construction over the same survey number. There was no good reason to single out the applicant herein without any valid justification. It is also submitted that the construction is at a distance of more than 40 meters from the National Highway. It is submitted that the applicants belongs to the Baxi Panch (socially backward class) and is sought to be discriminated on such ground. It is also submitted that the applicant is in an unauthorized occupation and possession of the land past more than 20 years and there is a policy of the State Government to regularize such unauthorized occupation of the government land and the construction made upon such land. In the last, it was submitted that there is no violation of the Ribbon Development Rules.
4. On the other hand, this application has been vehemently opposed by Mr. Sharma, the learned AGP appearing for the State-respondents. According to the learned AGP, no error, not to speak of an error of law could be said to have been committed by the authorities concerned in passing the impugned orders. The learned AGP would submit that no interference is warranted at the end of this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.
5. Mr. Sharma seeks to rely on the following averments made in the affidavit-in-reply, duly affirmed by the Mamlatdar, Chotila;
"6. At the outset, it is humbly submitted that the Page 6 of 18 HC-NIC Page 6 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER petitioner herein had applied for regularization of construction put over by the petitioner vide application dated 23.04.2003 to the Collector, Surendranagar. That land in question admeasure 111 sq. mtrs situated at Revenue Survey no. 46/1 paiki of village Nani Paliyad, Taluka Chotila, District Surendranagar and the construction put up over the land in question is in nature of residential and commercial shop in front. That the said application of the petitioner was rejected by the respondent no.2 herein vide order dated 17.02.2006 as there was breach of ribbon development rules. It is mainly contended in the petition that the respondent no.2 herein wrongly rejected the application of the petitioner as other similarly situated cases were considered for regularization. That it is further contended that thereafter the petitioner herein again applied for regularization vide application dated 7.4.2006 wherein the petitioner had prayed to reconsider the application for regularization for residential use over 59 sq. mrts as there was no breach of ribbon development rules, in as much as that the construction of the petitioner was at a distance of 42 mrts from the National Highway.
7. At the out set I humbly say and submit that none of the fundamental or any legal rights of the petitioner herein are violated calling for any interference of this Hon'ble court under writ jurisdiction. I humbly say and submit that the respondent authorities have acted within its scope and powers under the provision of the Gujarat Land Revenue code and the orders impugned are passed after verifying the original records of the case and after giving Opportunity of hearing as well as after considering the documents on record. I, therefore humbly say and submit that the impugned order is just and proper and no interference may be called for in writ jurisdiction , more particularly , when there concurrent findings of fact as well a law which is not perverse or without evidence. I humbly say and submit that the petitioner herein had applied for regularization of construction put over the land bearing revenue Survey No. 46/1 paiki of Village:
Nani- Paliayad, Tal.: Chotila, Dist: Surendranagar. That the said land is a Government traverse land . Here with annexed and marked as Annaxure -R-I is the copy of Village form no. 8A of the said land. I humbly say and submit that while considering the various cases of Page 7 of 18 HC-NIC Page 7 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER encroachment made over the Government land, the petitioner herein was also found to be in occupation and unauthorized use of part of land admeasuring 111 sq. mrts , used for residential as well as for commercial purpose. The petitioner herein was also served with notices under section 61 of the Bombay Land revenue code. Under the afore circumstances, the petitioner herein approached the learned Collector for regularization vide application dated 23.03.2003. That pursuant to the afore said application of the petitioner, the learned Collector had called for opinion and report of respective authorities. Here with annexed and marked as Annexure R-II is the copy of communication dated 27.12.2004 referred by the learned Collector to the Mamlatdar , Chotila. That even statement of the petitioner was taken by the Circle Officer and Panch rojkam was also under taken on 28.10.2004 in presence of the petitioner. Here with annexed and marked as Annexure R-III collectively are the Copies of Kabulatnama as well as the Panchrojkam dated 28.10.2004. However, it was found that the construction put over the said government land by the petitioner was in breach of Ribbon Development rules and hence the application of the petitioner was rejected by the learned Collector. That the petitioner herein had approached the learned Secretary ( Appeals ), Revenue Department wherein the respondent no.1 herein in Revision application being MVV/JMN/SNR/60/2006, had directed the learned Collector vide order dated 27.12.2006 to hear the petitioner and decide the matter afresh. That pursuant to the said directions, the learned deputy Collector, Limdi had vide communication dated 26.12.2007 furnished opinion thereby pointing out the fact that the construction put by the petitioner was found to be in breach of the Ribbon development rules. Here with annexed and marked as Annexure R-IV is the copy of the communication dated 26.12.2007 of the learned deputy Collector, Limdi. I humbly say and submit that so far as reliance place by the petitioner in similar cases is concerned, the same is not applicable to the facts of the present case, in as much as that at relevant point of time though the order of regularization was passed however, subsequently the said order has been revoked because of non compliance of furnishing of the amount towards regularization and demolition has already been under taken . Here with annexed and marked as Annexure R-V Page 8 of 18 HC-NIC Page 8 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER is the copy of the order dated 29.12.2011 passed by the Collector. So far as illegal and unauthorized construction put over by the petitioner is concerned, it may kindly be appreciated that the front portion of the house the petitioner herein is running shop and making commercial use and at the back the same is used for residential purpose. Again the said encroachment is made by the petitioner over the Government traverse land since last more than decade and the same is done intentionally . I humbly say and submit that upon measurement of the said illegal construction , it is found that the same is situated at a distance of 36.5 mrts. Away from National Highway and as per Ribbon Development rules a distance of at least 42 mrts is required to be maintained from central line of National Highway. I therefore say and submit that when the encroachment made by the petitioner herein was found to be in breach of afore said rules , the respondent authorities have come to concurrent finding after following due procedure of law which cannot be termed as perverse or without any evidence. I therefore say and submit that, the petitioner herein cannot be permitted to take benefits of his own wrong, inasmuch as, that the applicant herein is himself being guilty of negligence in intentionally making encroachment and making unauthorized non agricultural use . I therefore say and submit that, no prima-facie case is their in favour of the petitioner herein and the balance of convenience and irreparable injury is in favour of the present respondent authorities. I therefore say and submit that the petitioner herein is not entitled to any interim relief as prayed for, more particularly, when the petitioner herein has continued to be in illegal and unauthorized use of a traverse land which is a Government waste land, and is not entitled to any relief of regularization of land in question, more particularly, when the said encroachment was found to be made intentionally and for commercial purpose. Even otherwise, the petitioner herein has no statutory / constitutional right to get regularization of land in question as a matter of right. I say and submit that in view of the general directions issued by the Hon'ble Apex court Vide order dated 28.1.2011 passed in the case of Jagpal Singh & others V/s. State of Punjab & others in Civil Appeal No. 1132/2011 @ SLP (C) no. 3109/ 2011,the State Governments have been directed not to entertain or condemn the act of encroachment on the Government Page 9 of 18 HC-NIC Page 9 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER lands. Hence, I humbly say and submit that, no interim relief as prayed by the petitioner herein may be entertained by this Hon'ble Court and the present special civil application may be dismissed at its threshold.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the applicant is entitled to the relief prayed for in this application.
7. As noted above, this is a case, in which, the learned counsel has conceded that his client is in unauthorized occupation and possession of the government land and without any valid permission, has put up the construction of a house.
8. In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100 the Hon'ble Apex Court observe as under (para 11):
"An admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous."
9. The same view had been reiterated in Avadh Kishore Dass v. Ram Gopal, AIR 1979 SC 861.
10. In Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593, the Apex Court had taken the same view holding that the statements admitting the factual position must be given full effect and while deciding the same, the Hon'ble Supreme Court placed reliance on the decision in Slatterie v. Pooley (1840) 6 M and W 664, wherein the Court had observed that "what a Page 10 of 18 HC-NIC Page 10 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER party must admit to be true, may reasonably presumed to be so."
11. In Noorduddin v. Dr. K. L. Anand, (1995) 1 SCC 242:
(1994 AIR SCW 5093) the Hon'ble Supreme Court observed as under :
"The object of law is to meet-out justice. Right to the right, title or interest of a party in the immovable property is a substantial right. But the right of an adjudication of the dispute in that behalf is the procedural right to which no one has a vested right. The faith of the people in the efficacy on law is the saviour and succour for the subsistence of the Rules of law. In awakening like in the judicial process would rip apart the edifice of justice or create a feeling of disillusionment in the mind of the people of from law and Court. The rule of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almamater for the mankind. It is the foundation for the roderly human relations. Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."
(Emphasis added.)
12. Similarly, in Ramniklal M. Bhutta v. State of Maharashtra, AIR 1997 SC 1236, the Apex Court observed as under :
"The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out a legal point... the interest of justice and public interest coalesce. They are very often one and the same....The Courts have to weigh the public interest vis- a-vis the private interest while exercising the power under Article 226... indeed any of their discretionary powers.
(Emphasis added)"
13. The aforesaid judgments of the Apex Court are complete Page 11 of 18 HC-NIC Page 11 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER answer to the controversy involved in this case and negate all submissions canvassed by Mr. Majmudar, for the reason that the applicant has no legal right or any other right to assert or pray for regularization of the encroachment.
14. It is settled law that a person who suffers from legal injury only can challenge the act/action/order etc. Writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the respondents. Therefore, there must be judicially enforceable right for the enforcement on which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. (State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad v. State of U. P., AIR 1964 SC 728; Calcutta Gas Co. Proprietary Ltd. v. State of West Bengal, AIR 1962 SC 1044; Kalyan Singh v. State of U. P., AIR 1962 SC 1183; The Nagar Rice and Flour Mills v. N. Teekappa Gowda and Bros, AIR 1971 SC 246; K. Ramdas Shenoy v. The Chief Officers Town Municipal Council, Udipi, AIR 1974 SC 2177; Hans Raj Kehar v. State of U. P., AIR 1975 SC 389; Mani Subrat Jain v. State of Haryana, AIR 1977 SC 276 ; Thammanna v. K. Veera Reddy, AIR 1981 SC 116; State of Kerala v. Smt. A. Lakshmi Kutty, AIR 1987 SC 331 ; State of Kerala v. K. G. Madhavan Pillai, AIR 1989 SC 49; Mithilesh Garg v. Union of India, 1992 SC 443 (1991 All LJ 1167); Rajendra Singh v. State of M. P., AIR 1996 SC 2736;
Page 12 of 18HC-NIC Page 12 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co. Ltd., 1997 (4) SCC 452; Dr. Duryodhan Sahu v. Jitendra Kumar Mishra, (1998) 7 SCC 273: (AIR 1999 SC 114); Utkal University v. Dr. Nrusingha Charan Sarangi, AIR 1999 SC 943 and Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33: (2001 AIR SCW 4022).
15. In Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmad, AIR 1976 SC 578, the Apex Court has held that only a person who is aggrieved by an order can maintain a writ petition. The expression "aggrieved person" has been explained by the Apex Court observing that such a person must show that he has more particular or peculiar interest of his own beyond that of the general public in seeing that the law is properly administered. In the said case, a cinema hall owner had challenged the sanction of setting up of a rival cinema hall in the town contending that it would adversely affect monopolistic commercial interest, causing pecuniary harm and loss of business from competition.
16. In M. S. Jayaraj v. Commissioner of Excise, Kerala, (2000) 7 SCC 552: (AIR 2000 SC 3266), the Hon'ble Supreme Court considered the matter at length and placed reliance upon a large number of its earlier judgments, including The Chairman, Railway Board v. Chandrima Das, and held that the Court must examine the issue of locus standi from all angles and the petitioner should be asked to disclose the legal injury suffered by him.
Page 13 of 18HC-NIC Page 13 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER
17. It is well settled law that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. (Vide Dal Singh v. King Emperor of India, AIR 1917 PC 25; Collector, Land Acquisition Anantnag v. Mst. Katiji, AIR 1987 SC 1353; Mohammad Swalleh v. IIIrd Additional District Judge, Meerut, AIR 1988 SC 94: (1987 ALL LJ 1467) and Sree Jain Swetambar Terapanthi Vid(s) v. Phundan Singh, AIR 1999 SC 2322).
18. While deciding the matter the Court has to keep in mind the public policy. The Common Law Doctrine of public policy can be invoked wherever an action affects/ offends the public interests or where harmful result of permitting the contract in terms of injury to the public at large, is evident and undisputable as such a contract is hit by Section 23 of the Contract Act and is void. Vide Union of India v. Gopal Chandra Mishra, AIR 1978 SC 694: (1978 Lab IC 660); M/s. Firm of Pratapchand Nopaji v. Firm Kotrike Venkate Setty, AIR 1975 SC 1223.
19. In Murlidhar Agrawal v. State of U. P., AIR 1974 SC 1924, the Hon'ble Supreme Court has observed that any provision of law which is based on public policy, has to be given a strict adherence for the reason that the same has been enacted to protect the interest of the community as a whole. The Court further observed as under :-
"Public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time."Page 14 of 18
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20.. The public policy demands that permission of raising the construction should be given to the lawful owner of the land. In case it has wrongly been granted by the Authority concerned and on the said premises electric and water connection had been given, that would not create any right, title or interest in favour of the petitioners being in contravention of the public policy.
21. Any agreement which is opposed to Personal law of the parties or opposed to public policy, is void. (Vide C. N. Arunachala Mudaliar v. C. A. Murugantha Mudaliar, AIR 1953 SC 495; Raghubanchmani Prasad Narain Singh v. Ambica Prasad Singh, AIR 1971 SC 776; Nawabkhan Abbaskhan v. State of Gujarat, AIR 1974 SC 1471; Firm of Pratapchand Nopaji v. Firm of Kotrike Venkata Setty and Sons, AIR 1975 SC 1223; Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988) 1 SCC 530: (AIR 1988 SC 644), S. R. Nayak v. Union of India, AIR 1991 SC 1420).
22. In G. Annamalai Pillai v. District Revenue Officer, (1993) 2 SCC 402 : (1993 AIR SCW 2618), the Hon'ble Supreme Court held that a void agreement must, fail to receive legal recognition or sanction for the reason that the agreement was wholly destitute of legal efficacy.
23. Undoubtedly, a person who has wrongfully been deprived of his property or is likely to be deprived of his title, for protection of law and also for restitution of the property before all others 'a spoliatus debet ante ominea restitui', but the Page 15 of 18 HC-NIC Page 15 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER question is that this maxim applies only to a person who is wrongfully deprived of his property or is likely to be deprived of.
24. In the instant case, the applicant does not claim that the property belonged to him.
25. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim 'allegans suam turpetudinem non est audiendus'. If the petitioners have committed a wrong in occupying the public land they cannot be permitted to1 take the benefit of their own wrong. (Vide G. S. Lamba v. Union of India, AIR 1985 SC 1019; Narender Chadha v. Union of India, AIR 1986 SC 638; Molly Joseph v. George Sabastian, (1966) 6 SCC 337 and T. Srinivasan v. Mrs. T. Varalakshmi (1998) 3 SCC 112 : (AIR 1999 SC 595) and this concept is also explained by the legal maxim 'commondum ex injuria sua memo habere debet'.
26. In Ram Ji Lal v. Balwant Singh, 1967 All LJ 410 the Allahbad Court held that the Court cannot recognise a claim or cause of action based on a turpitude. Therefore, a person approaching the Court has to satisfy that he is in lawful possession of the premises in dispute. Otherwise, he cannot be heard. In such an eventuality, the legal maxim 'ex turpi causa non oritur actio applies.
27. I am not impressed by the submission of the learned counsel appearing for the applicant that as there is a policy of Page 16 of 18 HC-NIC Page 16 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER the State Government to regularize the encroachment, the authority must consider and regularize the construction as well as the unauthorized occupation. The fact that the applicant is in possession and occupation of the land past 20 years, also should not make any difference if the possession is otherwise unlawful. The allegations levelled that as the applicant belongs to the Baxi Panch and is being discriminated, are also reckless and baseless.
28. I may only say that the reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of courts tends to degenerate into misplaced sympathy and generosity and private benevolence. It is essential to maintain the integrity of legal reasonings and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mode of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. (see Kerala Solvent Extractions Ltd. v. A.Unnikrishnan and another, (1994)2 LLJ SC 888).
29. In view of the above, this application fails and is hereby rejected. Notice is discharged.
(J.B.PARDIWALA, J.) Page 17 of 18 HC-NIC Page 17 of 18 Created On Sun Oct 01 18:51:20 IST 2017 C/SCA/4639/2012 ORDER Vahid Page 18 of 18 HC-NIC Page 18 of 18 Created On Sun Oct 01 18:51:20 IST 2017