Gujarat High Court
Whether Reporters Of Local Papers May Be ... vs Municipal Commissioner & 2 on 21 October, 2016
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/3168/2005 CAV JUDGMEN
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3168 of 2005
With
MISC. CIVIL APPLICATION NO. 2593 of 2013
In
FIRST APPEAL NO. 491 of 1981
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL Sd/-
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1 Whether Reporters of Local Papers may be allowedYES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy ofNO
the judgment ?
4 Whether this case involves a substantial question ofNO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
BAVABHAI KARSANBHAI PATEL DECD. THRO' HERS....Petitioner(s)
Versus
MUNICIPAL COMMISSIONER & 2....Respondent(s)
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Appearance:
MR PRASHANT G DESAI, SENIOR ADVOCATE, with MR ANKIT SHAH,
ADVOCATE for the Petitioner(s) No. 1 , 1.2 - 1.3
MR SAMIR AFZAL KHAN, ADVOCATE for the Petitioner(s) No. 1.1
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MR PRAKASH K JANI, ADDL ADVOCATE GENERAL, with MR ROHAN
YAGNIK, AGP, for the Respondent(s) No. 2 - 3
MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 21/10/2016
CAV JUDGMENT
1. Both the aforementioned special civil application and miscellaneous civil application for review are being taken together having intermingling facts and common questions raised in both these matters.
2. The petition under Article 226 of the Constitution of India has been preferred by the petitioner seeking following reliefs:
"11(A) To issue appropriate writ, direction and order to the respondent to forthwith allot land admeasuring 4629 sq. mtrs. Comprised in final plot Nos.200 and 201 of T.P.Scheme No.5 of Rajkot, and to handover peaceful and physical possession of the said land to the petitioner;
(B) Be pleased to grant interim relief in terms of prayer clause (A) above, pending final disposal of the petition...."
3. Before proceeding, it will be necessary to dig out the past history of disputes between the parties which remained pending in various Revenue and Civil Courts from the year 1966 approximately. The outcome of such litigation will have a direct bearing to the reliefs Page 2 of 25 HC-NIC Page 2 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN claimed in this petition.
4. Present petitioner (original plaintiff) filed Special Civil Suit No.8 of 1972 in the Court of learned Joint Civil Judge (S.D.), Rajkot seeking reliefs, inter alia, regarding declaration of his ownership of the land bearing survey No.345 situated in Rajkot admeasuring 2 acres 13 gunthas. In the suit, plaintiff also sought declaration regarding the decision dated 09.11.1966/11.4.1969 of the Collector, Rajkot and thereafter decision by the higher revenue authorities, including Gujarat Revenue Tribunal, to be declared as void. The Civil Court, vide judgment and decree dated 31.03.1980 decreed the suit and declared that the suit land admeasuring 2 acres 13 gunthas of survey No.345 was of the ownership of the plaintiff. The impugned order of Gujarat Revenue Tribunal and the orders of other revenue authorities were declared illegal and not binding upon the plaintiff.
5. Being aggrieved from this judgment and decree rendered by the Civil Court, the respondent-State (original appellant) preferred First Appeal No.491 of 1981 in this High Court. This Court, vide judgment and order dated 01.11.2001, partly allowed the appeal. The relevant outcome of this appeal is reproduced as under:
"15. In view of what has been stated hereinabove, I am of the opinion that decree passed by the Court below to some extent is required to be confirmed and some extent is required to be modified and, therefore, I hold that 1 Acre and 16 Gunthas of Vonkla bank land are held to be part and parcel of Survey No.345 and is of the ownership of the plaintiff and decree to that effect is required to be Page 3 of 25 HC-NIC Page 3 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN confirmed in favour of the plaintiff and against the defendant. As far as 37 Gunthas of land are concerned, admittedly they are Vonkla land for rain water stream hence, same are kept as it is where it is and it is vested with the Government. Since the plaintiff has sold 20 Gunthas of land to Ravishankar from Survey No.345 out of which, admittedly, 8 Gunthas are Vonkla land and Vonkla of Survey No.345 are 37 Gunthas and, therefore, 8 Gunthas of Vonkla land has been sold to Ravishankar by the plaintiff without any title and, therefore, plaintiff should give account to that effect to the State Government. Now plaintiff is entitled to be declared as the owner of 1 Acre and 16 Gunthas of land minus 8 Gunthas.....
16. Hence, appeal is partly allowed and it is hereby declared that the plaintiff is the owner of 1 Acre and 8 Gunthas of Vonkla bank land and Vonkla land automatically vested in the Government. Decree is modified toaforesaid extent. Decree be drawn accordingly. No order as to costs....."
6. The State Government did not challenge the aforementioned judgment of the High Court in any higher judicial forum and, therefore, the said judgment became final. Accordingly, revenue entries came to be made in favour of the original plaintiff in Village Forms No.7/12, 8/A and 6 regarding the said land. Mamlatdar duly certified the said entries.
7. The land of the original plaintiff came within the municipal limits of Rajkot City. Subsequently, on finalization of Town Planning Scheme No.5 of Rajkot, the plaintiff was allotted final plot No.200 & 201 and its area was shown as 4629 sq. mtrs. instead of 4856 sq. mtrs. as held by the High Court.
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8. With this background, the plaintiff, on 05.06.2002, made a written representation to the respondents calling upon them to hand over physical possession of final plot No.200 & 201 to the plaintiff.
9. It appears that, after this representation, the Collector suo-moto reviewed the order of Mamlatdar and Entry No.227 dated 29.5.2002 made in the Register of Rights came to be cancelled by the Collector vide order dated 29.10.2005. The order of Collector is reproduced as under:
""23) Entry No.227 dated 29.5.2002 made in the Register of Rights is cancelled. As per the observations made hereinabove, land of Survey No.3345 admeasuring Acre 2-13 gunthas paiki land of Final Plot No.202 and 203 will remain in same names. Out of the land of Final Plot No.200 and 201, Are 0-04 gunthas of land from the corner of Final Plot No.201 will be considered in the name of Bavabhai Karsanbhai. Remaining land of Final Plot No.201 and the whole land of Final Plot No.200 will be of the Government and new entry be made accordingly. Accordingly, Mamlatdar, Rajkot is instructed to carry out the procedure to correct the area mentioned in Form No.8A in account No.1. ...."
10. Aggrieved from this order of the Collector dated 29.10.2005, original plaintiff preferred a contempt petition being Misc. Civil Application No.2528 of 2005 in First Appeal No.491 of 1981. In these contempt proceedings, the State made a statement that they would withdraw the order dated 29.10.2005 passed by the Collector in the suo moto proceeding. Accordingly, the relevant portion of the order dated 23.6.2008 passed by this High Court in MCA 2528 of 2005 is reproduced as under:
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HC-NIC Page 5 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN "3. After some arguments, learned AG declared before the Court that as per the District Collector, the petitioner suppressed certain factual aspects of having already disposed of the land which was part of the subject matter of the suit and therefore in view of the said position, the Collector has acted in bona fide exercise of power.
However, he submitted that since the Collector, Rajkot was one of the parties to the proceedings and the Mamlatdar mutated the entry based on the judgment of this Court and in view of the aforesaid factual position of having already disposed of the land by the petitioner prior and pending the suit and the possession of the land was also parted with to some extent, the details whereof are mentioned in the order which is the basis of the present petition, the said order passed by the Collector, Rajkot shall stand withdrawn with a view to enable him to move an appropriate application in the proceedings of the First Appeal, by resorting to appropriate remedy...."
It was further held, "if such application is made, rights and contentions of both sides in the aforesaid proceedings shall remain open and shall not get prejudiced in view of the order passed in the present proceedings. Rule is discharged. No order as to costs...."
11. In view of the aforementioned liberty, the State (respondent herein) filed a review application on 22.4.2008. Finally, this review application came to be disposed of vide order of this Court dated 05.4.2011 by holding that nature of the review application was such that if it was allowed, it would amount to reopening the original dispute which occurred about 40 years back and which has been finally resolved 10 years back. Review application was dismissed. Relevant para of the decision is reproduced as under:
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HC-NIC Page 6 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN "8. In the above view of the matter, even on merits, this Court does not find any ground to interfere with the judgment and order dated 1/11/2001 rendered in the aforementioned appeal in the form of clarification. The application is, therefore, devoid of any merits not only on technical aspect as discussed above, but even on merits.
9. For the foregoing reasons, the application is dismissed. Rule is discharged. There shall be no order as to costs...."
12. The respondent-State preferred an SLP in the Hon'ble Apex Court against the aforementioned order, however, the SLP came to be dismissed on 08.12.2014.
13. With this background, the petitioner preferred the present petition seeking action against the respondents on account of non-performance of their public duty which tentamounts to dereliction of duty on the part of public servants. He has further pleaded that the legitimate and legal rights of the petitioner continues to suffer in silence at the fag-end of his life as the petitioner is now aged about 85 years.
14. This petition came to be contested by respondent No.1 Municipal Corporation, Rajkot as well as by the State by filing separate replies. The Corporation in para 7 of its reply has averred that the land in question bearing survey No.345/paiki was included in Town Planning Scheme No.5, Rajkot (Final). Under the said Scheme, land admeasuring 5666 sq. mtrs. of survey No.345/paiki was given Page 7 of 25 HC-NIC Page 7 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN original plot No.58/Paiki and, against that land, land admeasuring 2335 sq. mtrs. and 2294 sq. mtr. were allotted in Final Plot No.200 &
201. In respect of the said lands, the land owners were shown as Collector, Rajkot on behalf of the State Government and Bavabhai Karsanbhai Patel (present petitioner). It was pleaded that rights of the owners in the original plots continued to be the same as in the Final Plot and the said question has to be decided by the Additional Mamlatdar, Rajkot City and, therefore, the Municipal Corporation has written to the Mamlatdar in their letter dated 24.12.2004 in this regard.
15. The State in its reply dated 03.08.2005 came out with the case that the petitioner has concealed facts that the land bearing final plot no.202 & 203 was also sold away by him. It was pointed out that land bearing final plot No.200 & 201 was owned by the State Government and the petitioner was trying to grab this land by resorting to illegal means and hiding vital facts from the Court.
16. As this matter remained pending before this Court for all these years, one of the parties approached the Apex Court by way of filing Civil Appeal No.9047 of 2016 and on 23.9.2016 the Apex Court while disposing of this civil appeal, expressed its anguish over not deciding the matter by this High Court.
17. While arguing on behalf of the petitioner, learned senior counsel Mr.Prashant Desai has raised various points.
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18. He has referred to the final order passed by this Court in First Appeal No.491 of 1981 dated 01.11.2001 and has submitted that as per this order, the petitioner was held entitled to 1 acre and 8 gunthas of land, while the State Government was entitled to 37 gunthas of vonkla land (water stream). According to him, this order was further tested by way of review, however, the same came to be decided in favour of the petitioner vide order dated 21.4.2011 passed by the High Court. Further SLP preferred against this decision has been dismissed by the Apex Court on 08.12.2014. On the basis of this order, Form-D has been drawn up under the Gujarat Town Planning & Urban Development Act, 1976 ("the Act" for short), wherein distribution and re-distribution of land and final plot have been depicted. He has drawn attention of this Court to the documents available at page 12A, 12B and 12C where in the ownership column names of Collector, Rajkot as well as that of the petitioner Bavabhai Karsanbhai Patel have been shown. The original plot area has been shown as 5666 sq. mtrs. and against that final plot No.200 & 201 admeasuring area of 4629 sq. mtrs. is shown. He has referred to the note given in column No.4 wherein it has been recorded: "Final ownership will be subject to decision of the Hon'ble High Court in the petition pending litigation". He has further argued that Note No.4 has been written, as Form-D has been drawn up in the year 1994 when the litigation was pending.
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19. Mr.Desai referred to sections 65, 67 & 68 of the Act and has submitted that after the plots which have been reconstituted into final plots, rights of such plot-holders are required to be settled by the Town Planning Officer and, on and after the date on which preliminary scheme comes into force, any unauthorized occupant is liable to be summarily evicted by the appropriate authority. According to him, once Form-D has been drawn under sections 3 and 35 of the Act, such form becomes part of the Act and it casts a duty upon respondent No.1 to hand over vacant possession of final plot No.200 & 201 admeasuring 4629 sq. mtrs. to the petitioner. It has been argued that the total area which should have been allotted to the petitioner in lieu of his 1 acre 8 gunthas should have been 4856 sq. mtr., however, in Form-D, the area is shown as 4629 sq. mtr. However, he has expressed his willingness to be satisfied with 4629 sq. mtrs. in place of 4856 sq. mtrs. Learned counsel has also referred to the judgments passed by the Apex Court in this regard concerning Municipal Corporation for Greater Bombay v. The Advance Builders reported in AIR 1972 SC 793. While relying upon this judgment, he has prayed to allow the present appeal.
20. On the other hand, Mr.Prakash K.Jani, learned Additional Advocate General, appearing along with Mr.Hriday Buch, learned counsel for the Municipal Corporation, has controverted these arguments by contending that the petition was not maintainable at all. First of all, Mr.Jani attacked the conduct of the petitioner by submitting that the petitioner has mis-stated the facts before the Page 10 of 25 HC-NIC Page 10 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN Apex Court, as a result of which the Hon'ble Apex Court passed orders dated 14.9.2016 and 19.9.2016 in Civil Appeal No.9074 of 2016 showing anguish over the matter remaining pending in the High Court. According to him, under the circumstances, discretionary relief prayed for under Article 226 of the Constitution of India cannot be granted to the petitioner.
21. Mr.Jani, learned AAG, further argued that the petition preferred by the petitioner was barred by delay and laches. The relief claimed in this petition could not be granted as the petitioner was first of all required to file execution of the decree passed in his favour by the trial Court and modified by the High Court in its judgment dated 01.11.2001, as the facts and rights of the parties were in dispute. In support of these submissions, he has referred to various provisions contained in the Code of Civil Procedure as to how the decree passed by the Court can be executed. According to him, it will be difficult to measure 37 gunthas of land which has been held to be of the ownership of the State. According to him, demarcating final plot of the petitioner will result into further litigation. In support of this argument, he has relied upon the following decisions:
1. Makarand Dattatreya Sugavkar v. Municipal Corporation of Greater Mumbai reported in (2013) 9 SCC 136.
2. Krishan Lal Gupta v. Adhishashi Adhikari reported in 1997 (0) GLHEL-SC 14840
3. Manager, St.Thomas U.P.School, Kerala v.l Commissioner & Secretary to General Education reportedin 2002 (0) GLHEL-SC 17029.Page 11 of 25
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4. State of Jammu & Kashmir v. Ghulam Mohd. Dar reported in 2003 (0) GLHEL-SC 28045.
22. This Court has considered the submissions made by both sides and has also gone through the documents with the help of learned counsels.
23. In his arguments, learned senior counsel Mr.Desai has emphasized the point that, vide judgment and order dated 01.11.2001 passed in First Appeal No.491 of 1981 by the High Court, rights of the parties have been crystallized and after that it was the respondent authorities who were required to comply this order and hand over vacant possession of final plots No.200 & 201 to the petitioner. On the other hand, Mr.Jani, learned Additional Advocate General, has argued the point that there were disputed questions of facts and, under this circumstance, the High Court should not entertain this writ petition. Unless the decree passed by the trial Court and modified by the High Court vide its order dated 01.11.2001 is not executed as per the provisions of the Code of Civil Procedure, possession of final plot Nos.200 & 201 cannot be handed over to the petitioners.
24. Keeping in view the rival contentions, this Court formulates the following questions and will answer them accordingly: Page 12 of 25
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(a) Whether rights of the parties are crystallized, or still there are some disputed questions of facts which could be answered after filing of execution by the petitioner?
(b) Whether the writ petition preferred by the petitioner under Article 226 of the Constitution was maintainable, and the relief claimed can be granted to him ?
25. First of all, this Court would like to take up the point regarding crystallization of rights of the parties. In the year 1972, petitioner (original plaintiff) filed Special Civil Suit No.8 of 1972 in the Court of learned Civil Judge (Senior Division), Rajkot. This suit came to be decreed and the suit land admeasuring 2 ares 13 gunthas of survey No.345 was declared to be the ownership of the plaintiff. The State went in appeal, being First Appeal No.491 of 1981, and this High Court vide its judgment and order dated 01.11.2001 partly modified the order of the Civil Court by reducing ownership of the plaintiff to 1 acre 8 gunthas, in place of 2 acres 13 gunthas of survey No.345 as held by the trial Court. The High Court, while disposing of the appeal, has specifically mentioned that the plaintiff was owner of 1 acre 8 gunthas of vonkla bank land (i.e. land along the bank of rainy water drain). The High Court has further clarified that the vonkla land automatically vested in the Government, meaning thereby that the water drain where water was actually flowing will be of the ownership of the State. After the decision of appeal, revenue entries were made which were certified by the Mamlatdar.
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26. It will be relevant to note that, after this decision in appeal on 05.06.2002, the petitioner made a written representation calling upon the respondent authorities to hand over possession of final plots No.200 & 201 to the petitioner. Instead of handing over possession, the Collector seems to have suo moto initiated review of the order of the Mamlatdar. The petitioner (original plaintiff) approached the High Court by way of contempt petition against the Collector. In the High Court, respondent State gave a statement that the said order passed by the Collector, Rajkot stands withdrawn. However, the High Court granted liberty to the State (original defendant) to move for review of the order of the High Court passed in First Appeal No.491 of 1981. Thereafter, on 22.4.2008, the respondent State preferred review application against the order passed in First Appeal No.491 of 1981 decided on 01.11.2001. This review application came to be dismissed on 05.04.2008. This order has been further carried to the Supreme Court in the form of SLP which came to be dismissed on 08.12.2014 and accordingly the judgment and order of the High Court passed in First Appeal No.491 of 2001 vide its judgment dated 01.011.2001 has attained finality.
27. This High Court in its judgment dated 01.11.2001 has clarified that the original plaintiff will be the owner of the land in survey No.345 admeasuring 1 acre 8 gunthas which is on the banks of the water stream, while the State is the owner of 37 gunathas which is vonkla (running water stream). It will be relevant to mention that during the course of arguments, Page 14 of 25 HC-NIC Page 14 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN both the sides have shown photographs, according to which this vonkla passing from survey No.345 has been converted into a concrete channel leaving no doubt whatsoever of the ownership and rights of the parties. 27.1 Accordingly, question No.(a) is decided by holding that there is no such dispute of questions of facts as argued by Mr.Jani, learned Additional Advocate General, on behalf of the respondent State. It is held that rights of the parties have been crystallized on 01.11.2001 when this High Court in its judgment and order passed in First Appeal No.491 of 1981 has clearly demarcated the land which will go to the original plaintiff and which will remain under the ownership of the State.
28. The second question is regarding maintainability of the petition. At the cost of repetition, it is pointed out that learned counsel for the petitioner has sought relief in the form of a writ, order, or direction to the respondents to forthwith allot land admeasuring 4629 sq. mtrs. comprised in final plot No.200 & 201 of T.P.Scheme No.5 of Rajkot, to the petitioner. This claim of the petitioner has been opposed by the State mainly on the ground that the petitioner was required to move for execution of the decree which was passed in the year 2001 and only thereafter he could ask for possession of final plot No.200 & 201, as there were disputed questions of facts.
28.1 As held in foregoing paras, this Court is of the considered
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opinion that, after decision by the High Court in its judgment dated 01.11.2001, there was no dispute regarding demarcation of the land of the parties.
29. Now the dispute remains whether the petitioner was required to move for execution of the decree or he could have straightway approached this Court for demarcation of final plot No.200 & 201 coming to his share.
29.1 In the process of allotment of final plots, the respondent Urban Development authorities have drawn up Form-D as required under the Act. Perusal of this form available at pages 12A, 12B & 12C shows that in the ownership column, names of the petitioner as well as the Collector, Rajkot have been written. However, a note is given in column No.4 wherein it has been recorded that final ownership will be subject to decision of the High Court in the petition pending litigation. It will be relevant to note that the Civil Suit was pending in the trial Court since 1972 and thereafter the Court delivered its judgment and decree on 31.3.1980 and thereafter First Appeal No.491 of 1981 was pending in the High Court which came to be decided on 01.11.2001. The aforementioned facts leave no doubt that on the date when Form-D was drawn up, rights of the parties were not yet crystallized and accordingly the respondent Corporation has given a note that final ownership will be subject to decision of the High Court. The State has not preferred any appeal or revision Page 16 of 25 HC-NIC Page 16 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN against the order in the First Appeal till 2008, meaning thereby, they have accepted the order. In the year 2008, State machinery swung into action and preferred review of the order in First Appeal which came to be dismissed on 05.04.2011. SLP preferred against this decision is also dismissed on 08.12.2014. Once the highest Court of the country has put its seal of approval on the judgment passed by the High Court in First Appeal No.491 of 1981 decided on 01.11.2001, clearly stating the land going to the share of each party, hardly there will be any further dispute of the ownership or location of the land. Under these circumstances, the petitioner was within his rights to approach this Court seeking the reliefs claimed.
30. It could be seen that immediately after decision by the High Court, on 05.06.2002, the petitioner made a representation to the respondents requesting them to hand over physical possession of final plot No.200 & 201 to the plaintiff. The respondent Corporation was duty bound to act upon such representation. Section 67 (a) (b) of the Act deals with the effect of preliminary T.P.Scheme which reads as under:
"67. Effect of preliminary scheme: on the day on which the preliminary scheme comes into force -
(a) all lands required by the appropriate authority shall, unless it is otherwise determined in such scheme, vest absolutely in the appropriate authority free from all encumbrances;
(b) all rights in the original plots which have been re-constituted
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into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer."
31. Under the provisions of Section 68 of the Act, the Corporation is further empowered to evict summarily any person who is found to be occupying such land not in accordance with the procedure prescribed thereunder. So it was respondent Corporation which was duty bound to hand over possession to the petitioner.
32. The Hon'ble Apex Court way back in the year 1972 while deciding AIR 1972 S 793 in case of Municipal Corporation of Greater Bombay v. The Advance builders (India) Pvt. Ltd. Has held, as under:
"12. It is clear, therefore, on a consideration of the provisions of the Bombay Town Planning Act, 1954 and especially the sections of that Act referred to above, that the Corporation is exclusively entrusted with the duty of framing and implementation of the Planning Scheme and, to that end, has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the Corporation is under an obligation to perform its duty in accordance with the provisions of the Act......"
33. Mr.Jani, learned Additional Advocate General, at the time of arguments, has referred to various judgments recorded in the foregoing paras. This Court has gone through all these judgments, i.e. Makarand Dattatreya Sugavkar (supra), Krishan Lal Gupta (supra), Manager, St.Thomas U.P.School, Kerala (supra) and Page 18 of 25 HC-NIC Page 18 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN State of Jammu & Kashmir v. Ghulam Mohd. Dar (supra). These judgments are applicable in cases where there are disputed questions of facts and in these judgments it has been held that High Court cannot entertain and decide any writ petition when disputed question of facts are required to be adjudicated by leading evidence in the trial Court.
34. As discussed in the foregoing paras, after the High Court's decision dated 01.11.2001 in the First Appeal, there was no dispute whatsoever concerning the factual location of the lands or the area going to the share of each of the parties. Once this Court is of the view that the controversy between the parties has been set to rest in the aforementioned judgment and has been further approved by the Apex Court, the arguments of Mr.Jani, learned Additional Advocate General, will not be helpful to advance the case of the respondents.
35. Under the circumstances, present petition is allowed. Respondent Corporation is directed to demarcate final plots No.200 & 201 within a period of one month from the date of receipt of a copy of this judgment and hand over vacant physical possession of the land to the petitioner as laid down under the provisions of the Act. Rule is made absolute, with no order as to costs.
MISC. CIVIL APPLICATION NO.2593 OF 2013:
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36. As far as MCA No.2593 of 2013 is concerned, the applicant (original plaintiff) has sought review of judgment and order dated 01.11.2001 in First Appeal No.491 of 1981 against the judgment and decree of the trial Court dated 31.3.1980 passed in Regular Civil Suit No.8 of 1972.
37. While arguing on behalf of the applicant, learned counsel as raised various points which are reproduced as under:
"1. Father of the plaintiff, i.e. Karsan Khima, had purchased land from erstwhile State of Gujarat in public auction by Lekh (Ex.80). In view of the above referred Lekh father of the plaintiff had purchased the land bearing survey No.345 paiki admeasuring 8 acre 21 gunthas.
2. The total land bearing survey No.345 paiki was 14 acres and 32 gunthas.
3. Break up of total land admeasuring 14 acres and 32 gunthas:
• 5 acres 24 gunthas was sold to Bhaktinagar Society.
• 0.11 gunthas went in acquisition by Railway.
• 2 acres 33 gunthas acquired by Swaminarayan Gurukul.
• 1 acre 33 gunthas acquired by Railway.
• 0.36 gunthas was sold to Mangal Patvari.
• A.1 : 12 gunthas land on the bank of vokda (including land in
question.
• A.1:26 gunthas vokda land (including land in question)
• 0.10 land on bank of vokda
• The petitioner-original plaintiff has alleged that land
admeasuring A.1 : 26 gunthas (Vokda land) and A.1 : 12 gunthas (Bank of Vokda) total admeasuring A.2: 38 gunthas still remains with the ownership of the petitioner after disposal of the remaining land as mentioned above. That on Page 20 of 25 HC-NIC Page 20 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN actual measurement on spot measurement comes to A.2 : 13 gunthas and hence as per the case of the petitioner - original plaintiff, this land admeasuring 2.13 gunthas should be held to be in the ownership of the petitioner - original plaintiff.
4. On 23.7.1963, an appoication for conversion of the land into NA of the land in question i.e. land bearing survey No.345 paiki admeasuring 2:13 gunthas was filed before the Collector under section 65 of the Bombay Land Revenue Code.
5. On 12.9.1963 the Collector had rejected the application on the ground that the petitioner is not in possession of the land.
6. The petitioner - plaintiff had challenged above referred order passed by the Collector before Commissioner and Commissioner had quashed the order of the Collector and passed order of the inquiry under section 37 (2) of the Land Revenue Code.
7. The matter was accordingly sent to the Taluka Mamlatdar and ultimately Deputy Collector held inquiry. The Deputy Collector ultimately held that land in question is not of the ownership and occupation of the petitioner-original plaintiff and land is of government land.
8. On 09.11.1966, Collector had rejected the appeal filed by the petitioner-plaintiff against the above referred order of the Deputy Collector.
9. Thereafter the petitioner had preferred revision before the Hon'ble Gujarat Revenue Tribunal, however, vide order dated 11.4.1969 revision was rejected by the Hon'ble Gujarat Revenue Tribunal.
The petitioner-plaintiff had issued notice of the Civil Procedure Code ultimately filed Special Civil Suit No.8 of 1972. Earlier suit was Page 21 of 25 HC-NIC Page 21 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN dismissed on preliminary issue, however, ultimately Hon'ble High Court had remanded the matter and proceedings of the Special Civil Suit No.8 of 1972 were initiated and proceeded further.
Ex.80 & 82 are ledger accounts which clearly shows that Karsan Khimji, i.e. father of the petitioner-plaintiff had purchased 8.21 gunthas of land in public auction.
10. Ex.84 is Tippan.
11. Ex.103 is measurement dated 24.12.1962 wherein it is noted that land in part B shows that land admeasuring 2.13 gunthas is of the ownership of Bava Karsan. The said measurement sheet is prepared by DILR in tune with the original Tippan which is at Ex.84. Conjoint reading of Ex.84 & 103 would reveal that measurement was undertaken in tune with the field book.
12. The fact remained that there is no iota of evidence which prima facie suggest that the land in question i.e. land bearing survey No.345 paiki 0.37 gunthas (now only that portion is land in question) was in use by another person for irrigation for agriculture purpose.
13. After considering the totality of the fact and evidence on record as well as after considering Rule 75 of the Bombay Land Revenue Rules, Trial Court had passed decree in favour of the petitioner and declared that he is owner and occupier of the land admeasuring 2.13 gunthas land. Order passed by the trial Court dated 31.3.1980 in Special Civil Suit No.8 of 1972 was subject matter of the challenge by the State authority by way of preferring First Appeal and First Appeal preferred by the State authority had partly allowed and petitioner-plaintiff declared owner of the 1.16 gunthas of land whereas remaining 0.37 gunthas land was declared in the ownership and occupation of the government as Vokda land. As per the evidence, there is no vokda land. Such aspect is discussed in detail by the trial Court.
14. The State authority had filed review application for clarification Page 22 of 25 HC-NIC Page 22 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN and held that the applicant had entitled for 0.4 gunthas of the land, however, such Review Application No.12 of 2007 was rejected/discarded.
15. Admittedly no Vokda is in existence and at relevant point of time there was no question of creating any documents as there was no dispute between parties in the year 1962.
16. The record of the Town Planning Scheme shows that land admeasuring 0.37 gunthas was never covered within the town planning scheme and therefore that part never considered and/or calculated as appeal was pending before this Hon'ble Court. Therefore, TP scheme is required to be varied."
38. On the other hand, Mr.Jani, learned Additional Advocate General, has controverted these arguments by referring to the decision given by this Court vide its order dated 5.4.2011 wherein the review application of the State has been dismissed and it has been held that nature of the review application was such that if it was allowed, it would amount to re-opening of the original dispute which occurred about 40 years back and which has been finally resolved 10 years back. While referring to the aforementioned facts, learned AAG has argued for dismissal of this review application.
39. This Court has considered the contents of this review application. As pointed out by Mr.Jani, learned AAG, the review preferred by the State against the judgment passed in First Appeal No.491 of 1981 has been dismissed on 5.4.2011. while dismissing the review, this Court has held:
"8. In the above view of the matter, even on merits, this Court does not find any ground to interfere with the judgment and order Page 23 of 25 HC-NIC Page 23 of 25 Created On Sat Oct 22 00:57:04 IST 2016 C/SCA/3168/2005 CAV JUDGMEN dated 1/11/2001 rendered in the aforementioned appeal in the form of clarification. The application is, therefore, devoid of any merits not only on technical aspect as discussed above, but even on merits.
9. For the foregoing reasons, the application is dismissed. Rule is discharged. There shall be no order as to costs...."
40. The SLP preferred against this order has been further dismissed by the Apex Court on 8.12.2014, meaning thereby, the judgment passed in the aforementioned First Appeal has attained finality.
41. Another fact which will be relevant to be highlighted here is that the pleadings of the review application are contradictory to the main petition, i.e. SCA No.3168 of 2005, as in the main petition, the petitioner has claimed ownership of the area shown as 4629 sq. mtr. While, through this review, the petitioner is claiming much larger area which may run into 10,000 sq. mtrs.
42. By now it is settled that delay of each day in approaching the Court has to be explained. In the present case, inordinate delay of 8 years in moving the application for review cannot be entertained. This is particularly so when review concerning same judgment preferred by the State has been dismissed. Under the circumstances, this review application being nothing but an afterthought is required to be dismissed. Ordered accordingly.
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C/SCA/3168/2005 CAV JUDGMEN
Sd/-
( MOHINDER PAL, J.)
KMGThilake)
After pronouncement of the judgment, learned Assistant Government Pleader, Mr.Rohan Yagnik, has made a request for stay of this order for another period of one month. As mentioned earlier, SLP preferred by the State in this matter was dismissed on 08.12.2014 and as such there will be no use in further staying implementation of the judgment/order passed by this Court. Resultantly, request of the State is declined.
Sd/-
( MOHINDER PAL, J.) KMGThilake) Page 25 of 25 HC-NIC Page 25 of 25 Created On Sat Oct 22 00:57:04 IST 2016