Gujarat High Court
Biharidan Jivabhai Gadhvi vs State Of Gujarat & on 13 October, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/2248/1992 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2248 of 1992
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BIHARIDAN JIVABHAI GADHVI....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
SR. ADVOCATE MR S. N. SHELAT, wit MR SHITAL R PATEL, ADVOCATE
for the Petitioner(s) No. 1
MR BHARAT VYAS, AGP for the Respondent(s) No. 1 2
RULE SERVED for the Respondent(s) No. 1 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 13/10/2014
ORAL JUDGMENT
Page 1 of 12
C/SCA/2248/1992 JUDGMENT
1. Present petition is filed by the petitioner under Article 226 of the Constitution of India as well as under the Bombay Land Revenue Code 1879 (hereinafter referred to as 'the Code') for the prayers, inter alia, that appropriate writ, order or direction may be issued for quashing and setting aside the impugned order passed by the Respondent No.1 dated 07.12.1991 at AnnexureL and also the interim relief regarding stay of execution and operation of the impugned order, on the grounds stated in the petition.
2. Heard learned Senior Counsel Shri S. N. Shelat appearing with learned Advocate Shri Shital R. Patel for the petitioner and learned AGP Shri Bharat Vyas for the Respondents.
3. Learned Senior Counsel Shri S. N. Shelat has referred to the background of the case and submitted that there are two aspects:
(1) whether the land is gaucher is required to be considered and (2) the another aspect is regarding allotment of the space to the persons like the present petitioner. Learned Senior Counsel Shri Shelat submitted that the order of allotment is of 1987 and in fact the possession has been given for which certificate was also issued. He further submitted that the land has been allotted to the petitioner and huge amount has been invested for its development and cultivation of coconut. The petitioner has been growing coconut trees, for which he has continued use of the land. He submitted that as per the order at AnnexureD the lease has been extended for a period of 20 years. He referred to the certificate given by the Talati produced at AnnexureF and submitted that since the petitioner is in occupation and possession for these years, it may not be unilaterally taken back and any exercise of powers is erroneous. He also referred to the order passed by the Collector under Section 83 in support of his Page 2 of 12 C/SCA/2248/1992 JUDGMENT submissions. He also referred to the showcause notice dated 16.10.1990 at AnnexureK and the impugned order passed by the Secretary (Appeals), Revenue Department dated 07.12.1991. He has also referred to the earlier round of litigation and submitted that this petition was dismissed by the High Court (Coram:
Hon'ble Mr. Justice Akil Kureshi, J) vide its order dated 24.08.2009 and the Letters Patent Appeal No.1742 of 2009 in Special Civil Application No.2248 of 1992 was filed carrying the said judgment and order in appeal. He pointedly referred to the order of the Hon'ble Division Bench (Coram: Hon'ble the Chief Justice Mr. S. J. Mukhopadhaya and Hon'ble Mr. Justice K. M. Thaker) passed in Letters Patent Appeal No.1742 of 2009 in Special Civil Application No.2248 of 1992 dated 06.09.2011 and the observation made that the matter was remanded to the learned Single Judge. He referred to this judgment and submitted that two aspects as stated in Para No.11.2 in the judgment are required to be considered. Learned Senior Counsel Shri Shelat submitted that the Court may also consider that it has been allotted to the petitioner and the development has taken place as also the petitioner has invested sufficient amount for its development. Therefore, whether it requires regulation or whether the order passed is justified.
4. Learned AGP Shri Bharat Vyas has referred to the details at AnnexureB and at AnnexureC. He has referred to the affidavit inreply and submitted that as contended in the affidavitinreply in detail that there was connivance and the land belongs to the government (gaucher), which is meant for grassing cattle. He submitted that the conduct of the petitioner is required to be considered that first it was granted on lease for limited period then it was granted on permanent basis for plantation of coconut trees. He submitted that as per the Government Resolution dated Page 3 of 12 C/SCA/2248/1992 JUDGMENT 20.03.1965 the waste land was granted for plantation of coconut trees and only waste land can be granted and not gaucher (grazing) land can be granted for any such purpose. Again, for grant of waste land, there is priority which is required to be maintained and the petitioner is not falling under any of such priority. He pointedly emphasized that he was not covered under any of the category that initially he was granted the land on lease initially for five years and thereafter it was modified up to the 20 years. He submitted that even to be eligible and qualify for grant of waste land other criteria are required to be fulfilled. Though, he may be a exservice man, then there is no such provision for grant of gaucher land. As the exserviceman is one of the category, the land can be granted as per the policy on fulfillment of the criteria including the criteria regarding the income or the category. Even again, it has to be with the approval of the government (emphasis supplied). Such powers were not vested with the Collector.
5. Learned AGP Shri Bharat Vyas referred to the papers and submitted that the manner is which the allotment of land was made, as some report made by the agriculture officer or rather consulted was the said agriculture officer by the then Collector regarding policy as well as provisions of law. He, therefore, submitted that it came to the notice, it has been considered and the impugned order came to be passed. He strenuously submitted that the Collector has no power or the jurisdiction to make any permanent allotment of the land or grant of any lease by any agreement. He submitted that in fact government circular dated 25.07.1984 refers to the directions to the Collector, not to grant or allot government waste land on permanent basis or lease without taking prior permission of the government. He referred to the further affidavitinreply and has also pointedly referred to Page 4 of 12 C/SCA/2248/1992 JUDGMENT the circular/government resolution produced with this affidavit at AnnexureRII. He also referred to the provisions of the Gujarat Panchayat Act, 1961 particularly Section 108(4) and Section 96(4) and submitted that no such land could be allotted. He also stated that the petitioner has only planted 123 coconut trees and in fact he has been cultivating mangoes, chicku, roses and other plants, which is not permissible and in fact very premise for grant of such land. He also referred to the additional affidavitinreply on behalf of the Respondent No.2 and pointedly referred to the contention with regard to entry No.595 and submitted that it is stated that it is the government gaucher land transferred to the Gram Panchayat vide by entry No.595. He further submitted that the Magod Gram Panchayat vide Resolution No.5 dated 29.11.1980 has stated to have willingness to surrender the said land to the government and the land has been taken back as gaucher and therefore, it has been gaucher land. However, the same has been deleted as gaucher land and shown as waste land.
6. In view of these rival submissions, it is required to be considered whether the present petition can be allowed or not and whether the impugned showcause notice and the impugned order passed by the Secretary (Appeals) dated 07.12.1991 at AnnexureL, can be sustained or not.
7. As it transpires from the background of the case, it is evident that the petitioner has conveniently solicited opinions from the earlier officers like the TalaticumMantri, Agriculture Officer etc., and based on such opinions, the Collector passed an order for grant of 5 years' lease which was subsequently, converted into 20 years. The details have been discussed in the affidavitinreply as well as in the further affidavitinreply by the Respondent State Page 5 of 12 C/SCA/2248/1992 JUDGMENT Government and it has to be read in context of the observations made by the High Court while disposing of this very Special Civil Application No.2248 of 1992 vide order dated 24.08.2009, considering the aspect of delay in initiating proceedings and the granting of land on lease etc., as well as the amount invested by the petitioner have been considered. It has been specifically observed that:
"7.3 The petitioner was not satisfied with the largesee of public property distributed free of cost as if they were private transactions between the Collector and the DSP of the District. He asked for the land on permanent basis claiming that he had already taken much pain and spent large amounts on its development. The Collector, Valsad, who happened to be incumbent other than one who had passed the previous orders, once again showed his graciousness by granting Government land to the petitioner on permanent basis. 16 acres and 33 gunthas of land thus was granted to the petitioner on payment of Rs.825/ in all.
7.4 The Collector did not notice that as the District Superintendent of Police, the petitioner was receiving substantial salary from the Government. The Collector was also not perturbed by the fact that the petitioner was not an agriculturist of Valsad District. Perhaps, he was not an agriculturist at all. These details were of no consequence to the Collector. To him the paramount consideration was that the petitioner was an exservice man. He did not even address the question as to how the petitioner would be able to cultivate the land personally being in active Police Service of transferable nature. At the relevant time, the Tenancy Laws of the State rigidly prohibited any person from owning agricultural land outside 8 k.m. radius of his other agricultural holding. It also required that the person seeking to cultivate the land personally would do so by having a permanent residence within 16 k.m. of the agricultural land held by him. In general, the Bombay and Tenancy and Agricultural Lands Act frowned upon a nonagriculturist owning agricultural land or carrying on agricultural operations as an owner. Be that as it may, the Collector did not even stop for a moment and think as to how a village Page 6 of 12 C/SCA/2248/1992 JUDGMENT Panchayat would oppose the wish of the District Superintendent of Police to acquire Government land which was alloted to the village Panchayat for grazing purpose. Presently prevailing Government policy provides for the ratio of one acre of grazing land for every 40 heads of cattle in the village. Whatever the ratio prevailed at the relevant time, should the Collector not have posed the question to himself whether after deducting the lands of said two survey numbers was the Panchayat left with sufficient gaucher land to support its cattle population? Admittedly this was not done by the Collector. He was in some kind of hurry to oblige the petitioner. It was in this background that three orders successively came to be passed in favour of the petitioner which the Secretary (Appeals) found not sustainable which, as already noted above, have been canceled by the impugned after issuance of show cause notice."
It is also observed that:
"10. At this stage, I only observe that the Collector seems to have passed the said three orders in favour of the petitioner without following any procedure, without following Government policies, without adhering to the requirements of various circulars and with a single minded devotion to ensure that the land which the petitioner could never have claimed be granted to him virtually free of cost. With passing of each order, the action of the Collector became more and more objectionable. With passing of each order, the Collector bend the rules and the procedures further in favour of the petitioner. It is unfortunate that in a country governed by rule of law and bound by the provisions of the Constitution, in which equality of all citizens is one of the basic features, only by weight of the position which the petitioner was enjoying, he could secure such orders in his favour. To the various conclusions reached by the Secretary, the petitioner has not been able to dislodge the same. In fact the petition is sought to be maintained mainly on technical grounds. And little has been argued about the merit of the order passed by the Secretary. As already noted, the Secretary found that there was no Government policy to grant land for coconut plantation from the gaucher land. Even while doing so, necessary publicity was required to be given calling for interested individuals to apply and thereafter comply with the Page 7 of 12 C/SCA/2248/1992 JUDGMENT priority prescribed in the circular. There was no priority granted to exservice men in such grant. The Secretary also found that an exservice man can claim land for cultivation provided his income is not more than Rs.500/ per month. Admittedly, the petitioner was drawing salary much higher than that. Though he disclosed salary of Rs.12,000/ per annum before the Collector, learned Assistant Government Pleader made available a communication from the Pay and Accounts Office, indicating that in February 1982, the petitioner was drawing Rs.2170 per month.......If the Government land could be divested in such perfunctory manner I shudder to think how the Government would be able to protect any of its properties. If DSP of the District and Collector of the District can join hands and divide Government properties as if they are dealing in private transactions, the Government control over its own properties would come to naught. Such an action of the Collector can never be protected under any circumstances, no matter what technical pleas the petitioner may raise particularly when to the conclusions of the Secretary, the petitioner has no satisfactory answer."
Thereafter, the same Bench has referred to the aspect of the fraud that grant of land was nothing short of fraud on public and referring to the observations made by the Hon'ble Apex Court in a judgment reported in AIR 2007 SC 2301 in the case of M/s. Tanna and Modi Vs. C.I.T. Mumbai XXV, it has been observed that:
"10. It is however, also well settled that fraud vitiates all solemn acts. Fraudulent actions shall render the act a nullity. It would be non est in the eyes of law."
8. Again, it has been observed and quoted from the judgment of the Hon'ble Apex Court reported in AIR 2005 SC 3310 in the case of State of Andhra Pradesh Vs. T. Suryachandra Rao, that "10. "Fraud", as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a Page 8 of 12 C/SCA/2248/1992 JUDGMENT conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi and Ors., 2003 (8) SCC 319)."
9. It is this judgment and order which was carried before the Hon'ble Division Bench by way of Letters Patent Appeal No.1742 of 2009 in Special Civil Application No.2248 of 1992 and the Hon'ble Division Bench (Coram: Hon'ble the Chief Justice Mr. S. J. Mukhopadhaya and Hon'ble Mr. Justice K. M. Thaker) vide order dated 06.09.2011 has only remanded the matter back to the learned Single Judge for reconsideration based on the verification of the details. Therefore, it is in this background, it is required to be considered that whether there is any substance in the petition. These aspects which have been referred in the order of the Hon'ble Division Bench which learned Senior Counsel Shri Shelat submitted for consideration, do not require much elaboration. Admittedly, as discussed in the judgment of the earlier Bench as well as referred in the affidavitinreply that it was a gaucher land and it has been in fact allotted to the Maghodh Gram Panchayat.
Page 9 of 12C/SCA/2248/1992 JUDGMENT It is also required to be mentioned at this stage that there is reference to other litigation by way of Special Civil Application No.3468 of 1982 and the same was disposed of by the High Court and the allotment of the land in question to the Panchayat was sought to be challenged which was dismissed.
10.The relevant resolutions/notifications including the Government Resolution dated 20.03.1965 as well as the other resolutions are also produced on record. It is required to be noted as produced with the further affidavitinreply filed on behalf of the government as AnnexureRI, the petitioner is said to have declared stating that he desires to be an agriculturist and he has also stated his income as Rs.12,000/ per annum, which is contrary to the record observed in the order passed by the High Court (Coram: Hon'ble Mr. Justice Akil Kureshi, J.) in its judgment and order passed in Special Civil Application No.2248 of 1992 dated 24.08.2009. This itself suggests about the attitude and mentality of the petitioner that he adhered to the false declaration, which inturn was not even verified by the Collector. The Collector did not even bother to verify, when it is clearly stated that he is exservice man then entirely he would be getting some amount or pension coupled with the fact that the petitioner had been serving as DSP of the District. There is specific reference in the affidavitinreply filed on behalf of the government that even the government waste land can be granted for cultivation only with the prior approval of the government (25.07.1984 circular) and the Collector seems to have totally been oblivious of the fact or the government policy and the procedure. Even the village form refers to this land was pasture land as stated in the entry No.594 produced on record. Reliance placed by the learned Senior Counsel Shri Shelat on the communication and Page 10 of 12 C/SCA/2248/1992 JUDGMENT correspondence and particularly the letter dated 29.11.1983 addressed by the Collector, Valsad to the Secretary, Revenue Department is also that he has certified and observed that the order of allotment of the land on lease to the petitioner DSP, Valsad is quite proper which may please be noted. However, he further referred to the communicated dated 22.07.1986 again addressed from the Collector, Valsad to the Secretary, Revenue Department, which records that the Government is not supposed to take any action in the matter and therefore, it is requested to return the relevant papers to this office. Thus, it reflects the manner in which the Collector has arrogated either directed or impressed the Secretary, Revenue Department as to what to be done and he taken the decision that the government is not supposed to take any decision in the matter.
11.At this stage, therefore considering the submissions, it hardly leave any doubt about the manner in which the transaction has been taken place, which could be said to be fraud on the government in connivance with the Collector made by the petitioner. A useful reference can also be made to observations made in a judgment of the Hon'ble Supreme Court reported in AIR 2005 SC 3310 in the case of State of Andhra Pradesh Vs. T. Suryachandra Rao, with regard to the fraud, which has also been referred to hereinabove and quoted earlier by the High Court in its order passed in Special Civil Application No.2248 of 1992 dated 24.08.2009.
12.Therefore, considering this background of facts and considering the observations made by the Hon'ble Division Bench to reconsider the same based on the details, it can hardly be said that the impugned order is not justified. In fact, the order passed Page 11 of 12 C/SCA/2248/1992 JUDGMENT by the Secretary (Appeals), Revenue Department at AnnexureL after the showcause notice is just and proper and it does not call for any interference and the present petition deserves to be dismissed and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.) FURTHER ORDER After the order was pronounced, learned Advocate Shri Shital R. Patel has requested for stay of the implementation, execution and operation of the order. However, in the interest of justice, the same is refused.
(RAJESH H.SHUKLA, J.) Tuvar Page 12 of 12