Gujarat High Court
Navuji vs State on 28 April, 2011
Author: Chief Justice
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/433/2011 9/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 433 of 2011
In
SPECIAL
CIVIL APPLICATION No. 6168 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
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 ?
=========================================================
NAVUJI
LALJI VAGHELA & 2 - Appellant(s)
Versus
STATE
OF GUJARAT THROUGH & 11 - Respondent(s)
=========================================================
Appearance
:
MR
JV VAGHELA for
Appellant(s) : 1 - 3.
MRS KRINA CALLA, AGP for Respondent(s) : 1 -
3.
NOTICE UNSERVED for Respondent(s) : 4 - 5.
NOTICE SERVED BY
DS for Respondent(s) : 6 -
12.
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 28/04/2011
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The appellants - original writ petitioners have preferred this Appeal under clause 15 of the Letters Patent, challenging the legality, validity and propriety of the judgment and order dated 28th June 2010 passed by the learned Single Judge in Special Civil Application No.6168/2010, whereby the learned Single Judge rejected the writ petition on the ground of locus standi of the appellants herein to invoke the writ jurisdiction of the Court.
Facts relevant for the purpose of deciding the present Appeal can be summarised as under:
Appellants are the original owners of the disputed land in question.
Appellants sold the said land by way of registered sale deed in favour of respondent nos.4 and 5 dated 31st May 1990.
After the said transfer, the names of respondent nos.4 and 5 were mutated in the revenue record. Entry also came to be certified.
Record reveals that thereafter, respondent nos.4 and 5 transferred the said land in favour of respondent nos.6 to 12 by registered sale deed dated 2nd May 1994. After the said transaction, names of respondent nos.6 to 12 were mutated in the revenue record.
It appears that after a period of about 8 years from the date of transfer of the land in question by the appellants herein, the Mamlatdar and ALT, Ahmedabad initiated suo motu proceedings under Section 84(C) of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, 'the Tenancy Act') on the ground that the transfer in favour of respondent nos.4 and 5 was in breach of Section 63 of the Tenancy Act.
The Mamlatdar and ALT, Dascroi passed an order dated 30th March 2007 against respondent nos.4 & 5 and respondent nos.6 to 12 and held that the transfer in favour of respondent nos.4 and 5 is illegal and the same was in breach of Section 63 of the Tenancy Act.
As the transfer by the appellants herein in favour of respondent nos.4 and 5 was declared to be invalid, automatically the transfer in favour of respondent nos.6 to 12 by respondent nos.4 and 5 also was rendered invalid.
Record reveals that being aggrieved and dissatisfied with the order passed by the Mamlatdar and ALT, Dascroi dated 30th March 2007, appeal under Section 74 of the Tenancy Act was preferred before the Deputy Collector (Land Reforms) and the Deputy Collector (Land Reforms) by judgment and order dated 29th July 2006 quashed and set-aside the order passed by the Mamlatdar and ALT, Dascroi and remanded the matter to the Mamlatdar and ALT, Dascroi for fresh consideration.
Being aggrieved and dissatisfied with the judgment and order passed by the Deputy Collector (Land Reforms) dated 29th July 2006, respondent nos.6 to 12 herein preferred Revision Application No.TEN/BA/214/2008 before the Gujarat Revenue Tribunal, Ahmedabad, which came to be allowed by the Tribunal vide judgment and order dated 10th July 2009, quashing and setting aside the order passed by the Deputy Collector (Land Reforms) and the order passed by the Mamlatdar and ALT, Dascroi dated 30th March 2007 passed under Section 84(C) of the Tenancy Act.
Against this order passed by the Tribunal dated 10th July 2009, the appellants herein - original petitioners preferred Review Application being TEN/CA/34/2009, which also came to be rejected by the Tribunal by judgment and order dated 29th January 2010.
Against these orders passed by the Gujarat Revenue Tribunal dated 10th July 2009 and 29th January 2010 respectively, the appellants herein - original land owners preferred petition under Article 227 of the Constitution of India. The learned Single Judge refused, and to our mind very rightly, to entertain the petition at the instance of the appellants herein who sold the land way back in the year 1990 after pocketing the sale consideration.
We are of the view that the learned Single Judge has rightly rejected the petition on the ground that the appellants have no locus standi and, therefore, no relief can be granted in favour of a transferor who himself has violated the provisions of law by entering into a transaction.
We are of the view that the position of law is very clear. Firstly, to maintain a petition under Article 226 or 227 of the Constitution of India, the party aggrieved must show that any of his fundamental rights or any other legal rights have been infringed and thereby the party is aggrieved by such infringement. Who can be said to be "a person aggrieved" ? One of the meanings is that "a person will be held to be aggrieved by a decision", if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved, if a legal burden is imposed upon him. Can it be said that the appellants would fall within the words "persons aggrieved" or "a person who has a genuine grievance because an order has been made which prejudicially affects his interest". On the contrary, this is an appeal by persons who are trying to take advantage of their own wrong. The maxim:
"Nullus commodum capere potest de injuria sua propria"
(No man can take advantage of his own wrong) is very much applicable in the facts and circumstances of the present case. The maxim:
"Nullus commodum capere potest de injuria sua propria"
(No man can take advantage of his own wrong) is one of the salient tenets of equity. The appellants cannot secure the assistance of a court of law for enjoying the fruit of their own wrong.
We may refer the decision of the Supreme Court explaining this principle of law, in the matter of Union of India and others v/s. Major General Madan Lal Yadav [Retd.], reported in (1996)4 SCC 127. In paragraph 28, the Supreme Court observed as under:
"In this behalf, the maxim nullus commodum capere potest de injuria sua propria - meaning no man can take advantage of his own wrong
- squarely stands in the way of avoidance by the respondent and he is estopped to plead bar of limitation contained in Section 123(2). In Broom's Legal Maximum [10th Edn.] at page 191 it is stated:
"...it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
The reasonableness of the rule being manifest, we proceed at once to show its application by reference to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium invocat quaerit qui in legem committit. He relies on Perry v. Fitzhowe [(1846)8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee puts him in prison, the bond is void. At page 193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned". At page 195, it is further stated that "a wrong doer ought not to be permitted to make a profit out of his own wrong". At page 199 it is observed that "the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed."
We have been consistently noticing that many persons like the present appellants have started abusing the process of law and have started taking undue advantage of such proceedings, more particularly, in land matters. After entering into a transaction with eyes wide open, knowing fully well that the transaction is in breach of the provisions of the Tenancy Act and after pocketing huge amount when the transaction is declared invalid and subsequently if the purchaser succeeds, the original owner would come before the Court saying that the transaction be declared invalid. Such practice needs to be deprecated.
For the reasons recorded in the judgment, we do not find any merit in this Appeal and the same deserves to be dismissed. The Appeal stands dismissed with no order as to cost.
(S.J.Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) /moin Top