Gujarat High Court
Navdurga Charitable Trust vs State Of Gujarat & on 4 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/14707/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14707 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 or any order made thereunder ?
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NAVDURGA CHARITABLE TRUST....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VISHAL C MEHTA, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/09/2017
ORAL JUDGMENT
1. By this application under Article 227 of the Constitution of Page 1 of 19 HC-NIC Page 1 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT India, the applicant, a charitable trust, through its power of attorney, calls in question the legality and validity of the order dated 07.04.2017 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 of the Collector, Ahmedabad dated 29.07.2008.
2. The facts of this case may be summarized as under;
2.1 The applicant, a public charitable trust, constructed a temple over the land bearing Survey No.362/A Part, admeasuring 1300 square yards, situated at village Vadaj, Taluka-City-District-Ahmedabad. The land in question, indisputably, belongs to the Government. It is the case of the applicant-trust that the construction of the temple was undertaken before about 100 years.
2.2 As the construction of the temple was without any valid permission, and that too, by encroaching upon the government land, the applicant-trust preferred an application addressed to the respondent No.2 seeking to purchase the land in question so as to regularize the construction and the encroachment over the government land. The respondent No.2, i.e., the Collector, Ahmedabad, by his order dated 06.12.1990, rejected such application.
2.3 The applicant-trust, being dissatisfied with the order of the Collector, rejecting the application referred to above, filed a revision application before the S.S.R.D at Ahmedabad.
2.4 The S.S.R.D, by an order dated 03.06.1993, allowed
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the revision application filed by the trust and quashed and set aside the order of the Collector, Ahmedabad dated 06.12.1990. The S.S.R.D directed the Collector to consider the proposal of regularization of the encroachment by forwarding an appropriate proposal in that regard to the State Government.
2.5 Pursuant to the order passed by the S.S.R.D., referred to above, the matter was reconsidered by the Collector, Ahmedabad and by communication dated 29.07.2008, the applicant-trust was informed that it was not possible or rather permissible in law to regularize the encroachment.
2.6 Being dissatisfied, the applicant-trust, once again, filed a revision application before the S.S.R.D and the S.S.R.D by the impugned order rejected the same thereby affirming the decision of the Collector. The S.S.R.D, while rejecting the revision application filed by the applicant-trust, held as under;
"3-1The applicant herein had applied to the Collector, Ahmedabad for purchase of the land for public use bearing Survey No.332, admeasuring 1300 square yards of Mouje Vadaj, Taluka-City-District: Ahmedabad. The Collector, Ahmedabad, vide his order No.CB/LND/1/6/3208 dated 6.12.1990 rejected the demand saying that there is an encroachment over the aforesaid land.
3-2 Being dissatisfied with the said order the applicant herein filed a revision application before the S.S.R.D. Upon filing the said application, the S.S.R.D vested the land bearing Survey No.362 admeasuring 00/80/94 square meter of Mouje Vadaj in the State Government. The land admeasuring 3500 square meter out of the land in question has been given to the Ahmedabad Municipal Corporation. The land admeasuring 400 square yards out of the said land has been give to Kantilal Shankarlal Raval for residence by the order of the Collector dated Page 3 of 19 HC-NIC Page 3 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT 12.6.1970. In the remaining land admeasuring 1300 square yards, there is a temple. Upon the demand of the land on which the temple is situated, the Collector had rejected the said demand saying that there is an encroachment over the said land. The Collector did not follow the procedure for regularizing the encroachment under section 61 and as the demand for land was rejected on the ground that there is an encroachment, the S.S.R.D, by its order No.SRD/JMN/AMD/3/91 dated
3.3.1993 remit the case to the Collector, Ahmedabad to decide the matter on merits and if necessary to request the Government for consideration.
3-3 There is a submission on behalf of the applicant that the temple is very old. However, no evidence has been adduced in that regard.
3-4 As the demand of the applicant was inconsistent with the provisions of the Resolution No.JMN-3988- 3290(1)A dated 15.2.1989 and the guidelines mentioned in the circular No.JMN-3997-2098-A dated 25.09.1997 of the Revenue Department, the Collector, vide the impugned order, rejected the same.
3-5 On the demand of the applicant herein pursuant to the order passed by the S.S.R.D dated 3.6.1993 to reconsider the issue with respect to regularization of the encroachment on the disputed land bearing Survey No.362 Paiki 1300 square meter, the Collector, by its impugned order dated 29.7.2008 declined to regularize the encroachment relying on the decision of the Gujarat High Court dated 25.03.2005 and rejected the demand of the applicant.
3-6. The Gujarat High Court has passed an order dated 04.01.2016 in the LPA No.1419 of 2015 in respect of the encroachment and in para-4, it has been stated " we may record at the outset that ther is no vested right with the petitioner to get the land allotted by the Government even if such policy exists. The policy is by way at enabling power but thereby citizen cannot compel the allotment of the land for his own purpose."
3-7 In this case, vide order no.Daban/Case No.2/2007, dated 26.10.2007, the City Mamlatdar, Ahmedabad has passed the order to take over the possession by the government by getting the encroached land vacated Page 4 of 19 HC-NIC Page 4 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT from the encroacher by initiating necessary procedure as per Section 61 of the Land Revenue Code.
4. As per the aforesaid fact, as the Collector does not find it appropriate to interfere with the said rejection order, the following order is passed. "
2.7 Feeling dissatisfied, the trust is here before this Court by way of this application under Article 227 of the Constitution of India.
3. Mr. Mehul Suresh Shah, the learned senior counsel appearing on behalf of the applicant-trust submitted that the Collector failed to reconsider the issue of regularizing the encroachment in its true perspective as directed by the S.S.R.D in its first order passed in the year 1993. Mr. Shah would submit that there is a policy of the State Government to regularize such old constructions in the form of temples etc. Mr. Shah submits that the trust is also ready and willing to pay the market price of the land in question.
4. On the other hand, the learned AGP has vehemently opposed this application and submitted that the trust is a rank trespasser. Unless they show their legal right to continue in possession of the land in dispute, they cannot seek regularization or choose the mode or method, by which they can be evicted. It is submitted that the Writ Court be meant for granting equitable reliefs, should not grant indulgence to the persons like the applicant-trust, who has admittedly encroached upon the public land. It is submitted that unless the applicant-trust shows, what is their legal right to continue in possession/occupation, the writ application should not be entertained and should be rejected.
5. Having heard the learned counsel appearing for the Page 5 of 19 HC-NIC Page 5 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT parties and having considered the materials on record, the only question that falls for my consideration is whether the authorities committed any error in passing the impugned orders.
6. At the outset, Mr. Shah, the learned senior counsel appearing for the trust conceded that the case is one of encroachment.
7. 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."
8. The same view had been reiterated in Avadh Kishore Dass v. Ram Gopal, AIR 1979 SC 861.
9. 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 party must admit to be true, may reasonably presumed to be so."
10. In Noorduddin v. Dr. K. L. Anand, (1995) 1 SCC 242:
(1994 AIR SCW 5093) the Hon'ble Supreme Court observed as Page 6 of 19 HC-NIC Page 6 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT 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.)
11. 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)"
12. The aforesaid judgments of the Supreme Court are complete answer to the controversy involved in this case and negate all submissions made by Mr. Shah, for the reason that the trust has no legal right or any other right to assert or pray for regularization of the encroachment or choose a particular Page 7 of 19 HC-NIC Page 7 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT procedure for eviction.
13. 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; 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 Page 8 of 19 HC-NIC Page 8 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT v. Dr. Nrusingha Charan Sarangi, AIR 1999 SC 943 and Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33: (2001 AIR SCW 4022).
14. 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.
15. 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.
16. 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 Page 9 of 19 HC-NIC Page 9 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT 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).
17. 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.
18. 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."
19.. The public policy demands that permission of raising the construction should be given to the lawful owner of the land. In Page 10 of 19 HC-NIC Page 10 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT 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.
20. 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).
21. 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.
22. 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 question is that this maxim applies only to a person who is wrongfully deprived of his property or is likely to be deprived Page 11 of 19 HC-NIC Page 11 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT of.
23. In the instant case, the applicant-trust does not claim that the property belonged to them. As stated above, Mr. Shah, the learned senior counsel, has admitted that the trust has encroached upon the public land.
24. 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'.
25. 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.
26. In the case of Baba Ramdev Pir Ane Sai Baba Mandir Na Vahivatkart vs. State of Gujarat, Special Civil Application No.15149 of 2012, decided on 27th March, 2015, this Court had an occasion to consider almost an identical Page 12 of 19 HC-NIC Page 12 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT situation. This Court ruled as under;
"3. Learned advocate, Shri B.S. Patel referred to the papers and submitted that the temple is very old and it is a place of worship. He therefore submitted that the order itself suggests that the temple was constructed on the land, which may be a government land but the super- structure of the temple was there. He therefore submitted that if there is a long standing structure then, it may not be disturbed and power under Section 61 of the Land Revenue Code cannot be resorted. Learned advocate, Shri Patel submitted that the remedy would lie under Section 37 of the Code and, therefore, the proceedings which have been initiated, are without jurisdiction. He also submitted that no notice has been served before the impugned order is passed. He has referred to the impugned order and submitted that as it appears, the Charity Commissioner has accepted about some claim and, therefore, so-called encroachment is required to be examined in background of the facts. Learned advocate, Shri Patel tried to submit that some of the structure of the temple is of 150 years old and, therefore, as per the provisions of the Places of Worships (Special Provision) Act, 1991, it would not be disturbed. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Bishan Das & Ors. Vs. State of unjab & Ors., reported in AIR 1961 SC 1570 in support of his submission.
4. Learned AGP Ms.Jyoti Bhatt has submitted that the claim with regard to the temple or any construction being old is misconceived. She pointedly referred to the affidavit filed by the respondent-State and submitted that as stated in detail, admittedly land belonged to the Government, which has been encroached upon and, therefore, as there is concurrent finding on this issue, this Court may not exercise discretionary jurisdiction under Article 226 of the Constitution of India. She has also submitted that in fact, the petitioner made an application on 02.12.1998 to allot the encroached land and the Collector rejected the said application on 28.07.1999 on the ground that Trust is not registered. She referred to the papers before the Charity Commissioner and submitted that in fact, it has already been recorded there Page 13 of 19 HC-NIC Page 13 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT that the land belonged to the Government and Trust was not registered. Learned AGP Ms.Bhatt submitted that there is no documentary evidence produced on record with regard to either of the trust or the existing construction being old, which is claimed and, therefore, as it is only because of the encroachment made on the government land, necessary steps have been taken after issuing notice. She referred to the order passed by the Mamlatdar and submitted that it is observed that the petitioner had repeatedly failed to remain present and, therefore, further steps have been taken. It was therefore submitted that the present petition may not be entertained.
5. In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.
6. As it transpires from the background with much details, it is a classic case of dishonest encroachment claimed in the name of religious faith. In fact, admittedly as stated by the petitioner and learned advocate for the petitioner that the land belonged to the government and in fact, it is also recorded in the proceeding before the Charity Commissioner also. Therefore the first submission made by learned advocate, Shri Patel that the power under Section 61 of the Code could not have been resorted as it is a matter under Section 37 of the Code, is thoroughly misconceived. In fact, as it appears from Section 37 of the Code, if any one claims any right, title and interest in the land vested in the Government, it is for the person to justify the claim based on material and evidence, which could be considered as provided under Section 37 of the Act. In the facts of the case, what learned advocate has submitted is other way around inspite of rank encroachment and what is claimed is that it should be considered whether it is a Government land despite the fact that the authorities have clearly recorded including the the Charity Commissioner has clearly recorded that it is a Government land. The revenue authorities have also in the order stated in detail about this aspect that it is the Government land as recorded in detail and encroachment is sought to be made. Further for the first time, the application is made to register the Trust much later and the application was made on 02.12.1998 to allot the land, which was already Page 14 of 19 HC-NIC Page 14 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT encroached upon and, therefore, it was rejected by the Collector. The office of the Charity Commissioner has also refused to register the Trust initially as the land belonged to the Government. This itself suggests that the claim made by learned advocate for the petitioner that it is a religious place of worship in existence for many years and, therefore, is covered under the Places of Worships (Special Provision) Act, 1991, is throughly misconceived. It is only a boggy raised with the knowledge of falsehood of the claim made with dishonest intention. It is required to be noted that learned advocate appearing for the petitioner or Managers of the petitioner-Trust before the Charity Commissioner had also not made any submission about such tall claims, which are sought to be raised in this petition. Further as stated in the affidavit-in-rely, after the application for allotment was rejected, the encroachment continued and it is an encroachment made which has already been considered in different proceedings before the different authority or the court like in the proceeding before the Charity Commissioner, the finding has been recorded by the Assistant Charity Commissioner while reaching conclusion that the land belonged to the Government and there is an encroachment or the construction made with encroachment on such Government land. Therefore, the registration of the trust was also declined by the Charity Commissioner. Further even before the civil court, plaint being Regular Civil Suit No.579/1999 was preferred before the Civil Judge (SD), Ahmedabad Rural, Mirzapur. The Civil Court while passing an order has made observations referring to the Town Planning Act that the land belonged to the Government and it has been observed that the plaintiff (the petitioner herein) cannot prevent the authority from constructing road under the Town Planning Act. In fact, it was also observed that no Trustee has filed suit under the Bombay Public Trust Act. The Civil Court also considered the relevant documents and material and came to a conclusion that the land belonged to the Government. It has been specifically observed that the plaintiff (the petitioner herein) had no right, title and interest over the suit land.
7. It is in this factual background, the submissions, which have been made relying upon the Places of Worships (Special Provision) Act, 1991 that it is a place of worships in existences before 150 years, cannot be Page 15 of 19 HC-NIC Page 15 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT accepted. In fact, this Act will not have any application to the facts of the case. The issue involved in the present petition is with regard to the encroachment on the Government land and it has nothing to do with the conversion of any place of worships. As it could be seen from the preamble of the Act, it refers to the place of worships and prohibition qua the conversion of place of worships and it does not refer to any issue regarding encroachment on the Government land or the public road and, therefore, it would not have any application.
8. Further the reliance placed by learned advocate, Shri Patel on the judgment in case of Bishan Das (supra) is also devoid of any merits as it was background of specific facts of the case inasmuch as in that case, as observed, the land was given by the Government and it was with the approval of the Government, which is not the case herein. In fact in the present case, it is an encroachment of the Government land.
9. Before parting, it is required to be noted that the petitioner has been indulging in such kind of litigation as and by way of abuse of the process of the court and one after another proceedings either before the revenue authority or before the Charity Commissioner or Civil Court are initiated. As stated above, reference could be made to the order passed by the Civil Judge (SD), Ahmedabad Rural in Regular Civil Suit No.579/1999 with regard to this vary land that it belonged to the Government. The observations have been made with reference to the provisions of the Town Planning Act and the encroachment made by the petitioner (plaintiff therein). However inspite of such order passed by the Civil Court as well as the order passed by the Charity Commissioner, the encroachment continued, which led to the exercise of power under Section 61 of the Bombay Land Revenue Code.
10. The submissions made referring to Article 25 of the Constitution of India are also devoid of any merits. Article 25 of the Constitution of India referred to the freedom of conscience and free profession, practice and propagation of religion. As provided in this article, it refers to the freedom given to the person or citizen to follow his own faith or practice the religion as he desires which has no Page 16 of 19 HC-NIC Page 16 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT reference to the issue involved in this matter regarding encroachment on the Government land. A useful reference can be made to the judgment of the Honble Apex Court in case of A.S. Narayana Deekshituli Vs. State of A.P. & Ors., reported in (1996) 9 SCC 548, wherein it has been observed that while interpreting Articles 25 26, careful balance between the freedom of the individual and need for the State or the interest of the community has to be maintained. Therefore, the person, who is encroaching on the Government land then cannot be permitted to sustain such encroachment on the Government land in the name of any religion or faith under Article 25 of the Constitution of India.
11. Further as stated above, there are concurrent finding of facts arrived at by the authorities including the Mamlatdar, Collector and Special Secretary, Revenue Department in respective proceedings. It is in this background, the present petition which is filed for the prayer as stated above, cannot be entertained. The petitioner as discussed above has filed proceeding as and by way of abuse of process of the court to consume time, which cannot be permitted. Some of the averments in the petitioner are also given reflection about how the purpose is sought to be served in the name of religious faith referring to Article 25 of the Constitution of India, which is not permissible under the law."
27. Mr. Shah, the learned senior counsel submitted that the temple is quite old. The public at large have a lot of religious sentiments attached to the same. People have lot of faith and belief in the deity of the temple. If the temple is demolished, that would hurt the religious sentiments of the people at large. In such circumstances, he submitted that the matter may be considered sympathetically.
28. I am not impressed with such submission of the learned senior counsel. 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 Page 17 of 19 HC-NIC Page 17 of 19 Created On Fri Sep 15 23:18:44 IST 2017 C/SCA/14707/2017 JUDGMENT 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. The Court of law should not decide the matters on the basis of the religious sentiments of the people at large. It is high time that the Government takes prompt and appropriate steps in accordance with law to clear all the encroachments across the State. It should not make any difference whether it is a temple or a house or any other religious structure. If the same is constructed by encroaching upon the government land, then it has got to be demolished at the earliest. To pray for regularization of a temple constructed by encroaching upon a large parcel of the government land, is nothing but an insult to the god.
30. In view of the above, this application fails and is hereby rejected.
(J.B.PARDIWALA, J.)
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Vahid
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