Gujarat High Court
Kalubha Gemarsinh Vaghela vs State Of Gujarat & 3 on 4 July, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/7654/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7654 of 2014
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KALUBHA GEMARSINH VAGHELA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR NK MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR.MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 04/07/2014
ORAL ORDER
1. Heard Mr.Khambholja, learned advocate for Mr.Majmudar, learned advocate for the petitioner .
2. In present petition, the petitioner has prayed inter alia that:-
"8(B).Be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the order passed by the Special Secretary Revenue Department (Appeals) at Ahmedabad being No.MVV/JMN/Kutch/2/2007, whereby, the respondent no.1 rejected the said Revision Application by an order dated 27.06.2013 and confirmed the order passed by the District Collector in Revision Application No.16 of 2006 dated 23.11.2006 by which the order passed by the Deputy Collector - Anjar dated 16.02.2004 passed in Appeal No.44 of 2003 came to be confirmed."
3. The petitioner is aggrieved by order dated 27.06.2013 passed by the respondent no.1, whereby the said authority has confirmed the order dated 23.11.2006 passed by the Collector.
Page 1 of 6 C/SCA/7654/2014 ORDER4. The petitioner claims that the land in question is Vada land and petitioner inherited from his father.
5. So far as factual matrix is concerned, the petitioner averred inter alia that:-
3.2 It is most respectfully states and submits that, after death of the father of the petitioner, the name of the petitioner came to be posted in the revenue record with regard to the subject land. That petitioner, being Police Sub Inspector, was serving at the place where he was posted, and therefore, petitioner was not served with any ind of show cause notice issued by the revenue authority with regard to acquisition of aforesaid land for the purpose of construction of telephone exchange building. It is further most respectfully states and submits that, it is an admitted fact that, petitioner was in the legal and valid possession of the subject land since long, and therefore, a communication was sent by the respondent no.3 i.e. Mamlatdar, Rapar to the petitioner dated 05.02.1999, wherein, it was informed by the respondent no.3 that the subject land is mentioned on the name of the petitioner in Vada Register as a 'Vada' and petitioner has not yet taken the possession of rights of the said vada land.
If, the petitioner is desirous to regularize the Vada land then within 10 days from receiving the said notice appropriate application may be made to the Mamlatdar office for the same. If, the petitioner would not prefer an application within limitation as prescribed in the notice attaching Annexure/documents then it would be understood that petitioner is not interested in regularizing the vada land.
3.3 It is most respectfully submitted that, father of the petitioner expired on 04.07.1994. That father of the petitioner was also Police Officer and he retired on 31.08.1981.
3.4 It is most respectfully states and submits that, the said notice dated 05.02.1999 issued by the respondent no.3 was never been served upon the petitioner. That the said notice itself speaks that the petitioner is in possession of the said subject land and petitioner was entitled for regularization and to have the possession of rights of Vada, however, Village Panchayat has passed a Resolution dated 23.02.2000 and decided to give permission for construction of telephone exchange. It is most respectfully submitted that, Village Panchayat has no right to pass such kind of Resolution. That Village Panchayat has without giving any show cause notice to the petitioner or without giving any opportunity of hearing, passed Resolution dated 23.02.2000 in absolutely illegal and unauthorized manner. It is very pertinent to note that, a person who was holding the post of Deputy Sarpanch viz. Nondhabhai Babubhai Gohil himself has filed an Affidavit to the effect that, the said Resolution has been passed in his absence and without approval/permission of the owner of the land, Village Panchayat cannot passed Resolution to allot the land to anyone. That one member of the Village Panchayat viz. Garva Chhaganlal Khanchan has also filed an Affidait, wherein, he has Page 2 of 6 C/SCA/7654/2014 ORDER stated on oath that the subject land was of the ownership of the father of the petitioner and the Resolution dated 23.02.2000 passed by the Village Panchayat was passed in his absence. Therefore, petitioner issued a Notice dated 21.02.2001 (which is annexed at Annexure-A to this petition). That despite the notice came to be issued upon the concerned respondent authorities, no satisfactorily reply was given by the authorities, therefore, the petitioner has preferred an application to the respondent no.3 dated 15.01.2002 with a prayer that aforesaid subject land (vada land) may be regularized.
6. It has emerged from the fact that until 21.12.2001, the petitioner had not taken any action and for the first time the petitioner, on or around on 21.12.2001, submitted an application before the Mamaltdar, to enter his name in the record so far as Vada land in question is concerned.
7. After examining the facts of the case and relevant material, the petitioner's request came to be rejected by the competent authority.
8. Subsequently the matter was carried before the Collector by way of revision application of Revision Application No.16/06.
9. The Collector, after examining entire material and relevant record, recorded specific findings of fact that at the time of promulgation, the land was not described as Vada land and at the material time, the land did not stand as Vada land in the name of the petitioner and/or petitioner's father. The respondent Collector also found that the said land in question is also not registered in the Vada Registrar.
10. The Collector also noticed that so far as land in question is concerned, telephone exchange building is already constructed over the said land.
Page 3 of 6 C/SCA/7654/2014 ORDER11. After examining the record and relevant materials and details as well as submissions by learned advocate for the petitioner, who appeared before the Collector and vide order dated 23.11.2006, the Collector rejected the request of the petitioner.
12. The said order was carried in revision application before the respondent no.1.
13. The respondent no.1 authority also examined the entire case and after taking into consideration facts and circumstances and also after taking into consideration the fact that telephone exchange building is already been constructed on the land in question, confirmed the order of Collector and dismissed the revision application.
14. Present petition is preferred against the said two concurrent orders.
15. At the time of hearing, learned advocate for the petitioner has failed to demonstrate any factual error of facts, much less any error of law, in the said order.
16. The only contention, which the petitioner raised is that at the relevant time when the notice was issued by the competent authority, the petitioner was not aware about the said notice because as an employee in the police department he was posted at some other place and at the relevant time, he had not received the notice.
17. The submission is not palatable. It is pertinent that the petitioner had not raised the contention that the notice was not received by the petitioner, either before Page 4 of 6 C/SCA/7654/2014 ORDER the Deputy Collector or before the Collector during the hearing of application no.44/2003 and/or application no.16/06 respectively.
18. It appears that, during the hearing before the Secretary, the petitioner has made said allegation for the first time.
19. Therefore, the said allegation and claim does not inspire confidence.
20. Moreover, it is also not palatable that for such long time the petitioner would not have visited the said place and would not come to know about the notice.
21. Except the said allegation and claim, any other contention, as regards the impugned order, more particularly, either on any legal premise or factual premise is not raised. Further more even at the initial stage, the petitioner (or his father) had not made necessary and appropriate application within prescribed time. This aspect is recorded by the Deputy Collector in his order dated 16.04.2004 and at any point, the said finding's not disproved with help of cogent documents.
22. The petition therefore, does not deserve to be entertained. Any ground to take a view other than and different from the view taken by the Deputy Collector and Collector and the respondent no.1 S.S.R.D., is not made out. The petition fails. Accordingly, it is rejected.
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