Gujarat High Court
Bhaniben Muljibhai vs Kanjibhai Khengarbhai Dalwadi & 4 on 16 October, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/1144/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1144 of 2005
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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BHANIBEN MULJIBHAI....Petitioner(s)
Versus
KANJIBHAI KHENGARBHAI DALWADI & 4....Respondent(s)
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Appearance:
MS E.SHAILAJA, ADVOCATE for the Petitioner(s) No. 1
MR BHARAT VYAS, AGP PLEADER for the Respondent(s) No. 3 4
MR MB PARIKH, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 2 3
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 16/10/2014
ORAL JUDGMENT
Page 1 of 9
C/SCA/1144/2005 JUDGMENT
1. Present petition is filed by the petitioner under Articles 14, 19, 226 and 227 of the Constitution of India as well as under the provisions of Section 37(2) of the Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the BLR Code') for the prayers, inter alia, that appropriate writ, order or direction may be issued quashing and setting aside the order passed in Appeal No.TEN AA22 of 2003 by the Revenue Tribunal dated 06.12.2004 at AnnexureA and also the order passed by the Mamlatdar, Dhrangadhra in HakChokshiCase No.3 of 2001 dated 15.10.2001 at AnnexureC, on the grounds stated in the memo of petition.
2. The facts of the case briefly referred to are as follow:
3. It has checkered background that earlier Special Civil Application No.15025 of 2003 filed by the petitioner and it was disposed of vide order dated 27.04.2000. The matter was remanded according to the Saurashtra Land Reforms Act. One Halubha Bhalubha of Village Kondh of Taluka Dhrangadhra was given land for cultivation on the basis of some form to be filled in. At the time when it was given, it appears that the exact measurement has not taken place. Thereafter, the Agriculture Land Ceiling Act came into force and the said Halubha was holding excess agriculture land. The proceedings were initiated and the said excess land allotted as santhni for which entry No.1526 was made. However, as stated in detail in the order at AnnexureA as well as in the order passed by the Collector, Surendranagar at AnnexureC there was some confusion with regard to the land. Initially, Lakhuben Hirabhai was allotted land admeasuring about 5 acres of land out of land bearing Survey No.527 as santhni. Thereafter, when deceased Lakhuben Hirabhai who was the original grantee has expired, the daughter Bhaniben Muljibhai made request that Page 2 of 9 C/SCA/1144/2005 JUDGMENT there is some error and instead of Survey No.527, it should be from Survey No.867. Therefore, the Collector passed the order in March, 1994 giving possession to the petitioner Bhaniben of land admeasuring 4 acres and 10 gunthas from Survey No.867, taking it away from one Rana Halubha Bhanubha. Thereafter, again the petitioner filed the proceedings before the Collector, Surendranagar vide Application No.110/9798 stating that she should be allotted land from Survey No.524 instead of land from Survey No.867. However, the Collector vide its order dated 16.05.1998 set aside the order of the Deputy Collector dated 30.03.1994 and handed over the possession of the land bearing Survey No.524 to the petitioner. Against that order, the revision was preferred before the Special Secretary (Appeals), Revenue Department, which was also dismissed and the order of the Collector dated 16.05.1998 was confirmed. Therefore, the Respondents and their predecessors in title had filed Hak ChokshiCase No.3 of 2001 under Section 37(2) of the BLR Code contending that land bearing Survey No.524 is a private land and the same was purchased by them by registered saledeed dated 18.03.1986 and 10.03.1995. Thus, this kind of attitude of the petitioner which has lead to various confusion and litigations, which has been dealt with in detail in the order at AnnexureA. The Secretary (Appeals) in the aforesaid appeal No.TENAA22 of 2003 clearly passed the order that if the respondents are the purchasers of the land by registered saledeed then the petitioners cannot claim any right, title and interest, therefore, the order of the Mamlatdar was confirmed in HakChokshiCase No.3 of 2001, which has led to this petition.
4. Heard learned Advocate Ms. E. Shailaja for the petitioner, learned Advocate Shri M. B. Parikh for the Respondent Nos.1 and 2 and Page 3 of 9 C/SCA/1144/2005 JUDGMENT learned AGP Shri Bharat Vyas for the Respondent Nos.3 and 4.
5. Learned Advocate Ms. E. Shailaja for the petitioner referred to the background of the case with much details and has tried to convenience the Court that there was mistake on the part of the authorities and if the land was allotted and is in possession of the petitioner then it should not have been interfered with any such proceedings. She pointedly referred to the AnnexureG which is in respect of handing over the possession and claimed that the land from Survey No.524 was given and apart from anything it was regularized. She, therefore, submitted that since the mother of the petitioner was the original allottee such an order is erroneous.
6. Learned Advocate Shri M. B. Parikh for Respondent Nos.1 and 2 also referred to the details and the background of the case and tried to submit that the petitioner has been making one after another claim for different lands which has resulted into various litigation and confusion. He again referred to the details with regard to the original allotment to the deceased Halubha Bhanubha, who is the father of Rana Jaduvirsinh Halubha and Rana Shambhusinh Halubha. The land belonging to Halubha was declared surplus under the Agriculture Land Ceiling Act and was allotted as grant as part of the land as santhni, which was not measured. However, the dispute went on as to the land is of which survey number, meaning thereby is it of Survey Nos.867, 524 or 527. Therefore, the present petitioner has also taken up the issue that it was granted out of Survey No.867 and entry should be corrected. However, so far as the land bearing Survey No.524 is concerned, the father of the Respondent Nos.1 and 2 had purchased the land by registered saledeed dated 18.03.1986 for Page 4 of 9 C/SCA/1144/2005 JUDGMENT which the entry No.5388 has been made. Therefore, in the earlier proceedings they were not joined as party. He, therefore, submitted that the proceedings under Section 37(2) of the BLR Code are required to be undertaken to establish the title. In spite of the fact that the matter was pending before the Secretary (Appeals), the order dated 16.05.1998 came to be passed and part of the land out Survey No.524 was given to the petitioner, though the possession of the land in question has been with the respondents. The District Inspector of Land Records and the Surveyor has given the statement before the Court, which he referred while referring to the order of the Collector passed in Revision Application No.5/2002 produced at AnnexureB. Learned Advocate Shri Parikh, therefore, submitted that the conduct of the petitioner is required to be noted and cannot make any claim and, therefore, the present petition may not be allowed.
7. Learned AGP Shri Bharat Vyas referred to the background and submitted that the land bearing Survey No.524 is the private land and order passed in appeal No.22/2003 at AnnexureA is very clear. He submitted that in fact the petitioner is claiming possession on the part of the land out of Survey No.524 and also the part of the land out of Survey No.867 (5 acres and 4 acres and 10 gunthas respectively), which is erroneous. Therefore, the petitioner is in possession of Survey No.524 and the respondents are in possession of Survey No.867. He also referred to the Rojkam and tried to submit that there is a issue with regard to the exact measurement and identification of the land for which the claim is made by the petitioner. Learned AGP Shri Vyas submitted that the mother of the petitioner was granted land as santhni after the land was declared as surplus from the original holder of the Page 5 of 9 C/SCA/1144/2005 JUDGMENT land (Halubha). In any case, the respondents are the purchasers of the land in question from the original owner and therefore the present petition may not be entertained. Therefore, he referred to the orders at AnnexureA and B at length and submitted that the Court may pass appropriate orders.
8. In view of these rival submissions and checkered background of the case coupled with the fact that there are difference litigations, it is required to be considered whether the present petition can be entertained or not.
9. It is evident that the petitioner has been making claim in respect of different survey numbers, which has led to this confusion and rounds of litigations. Much emphasize has been given by learned Advocate Ms. Shailaja referring to the background that the land has been with the petitioner forming a part of Survey No.524 and Survey No.527. She therefore, submitted that after long lapse of time, it could not be questioned and therefore the order passed is erroneous. However, as could be seen from the background, when the claims are made or the rival claims are made, it is desirable to consider the relevant factors. Admittedly, by registered saledeed the father of the respondents had purchased the land from the owner and there is reference to the earlier orders. Thus, the petitioner has been claiming the land after long lapse of time and that could have been a matter of some clarification on the basis of the measurement of DILR and identification of land and unnecessarily the litigation has been generated and persuaded. It appears that the petitioner has been making claim qua different lands and the authorities have passed the different orders at the relevant time resulting into confusion. However, the fact remains that the father of the respondents had Page 6 of 9 C/SCA/1144/2005 JUDGMENT purchased the land by registered saledeed and the submissions made by learned Advocate Ms. Shailaja are misconceived. There is no suit was filed or any proceedings were initiated for cancellation of the saledeed by the petitioner. There is no grievance made with regard to this aspect and the petitioner having claimed once and has been making claim for another land also at times the possession has been taken place from other persons and it is handed over to the petitioner. Thus, the prayer made by the petitioners challenging the impugned order at AnnexureA, cannot be sustained. It is required to be mentioned that under Section 37(2) of the BLR Code it is for the persons who claim any right, title and interest in the land of the government has to establish by cogent material and evidence. Section 37 (2) of the BLR Code provides as under:
"37(2). Any member of the public or any person having any interest or right in addition to the right of public high way, in or over such road, lane or path, or part thereof, or having any other interest or right which is likely to be adversely affected by the proposal may, within ninety days after the issue of the notification objections to the proposal the nature of such interest or right and the manner in which it is likely to be adversely affected, and the amount and particulars of his claim to compensation for such interest or right:
Provided that the Collector may allow any person to make such a statement after the period of ninety days after the issue of the notification under Subsection (1) if he is satisfied that such person had sufficient cause for not making it within the said period."
10.Therefore, the petitioner could have made the claim and as stated above, on the basis of the measurement or some confusion the orders were passed, though the petitioner was not entitled for the land in question. Therefore, the order came to be passed, cannot Page 7 of 9 C/SCA/1144/2005 JUDGMENT be said to be erroneous. Further, the order passed in the Revision Application No.5/2002 at AnnexureB refers to the background in detail. The District Inspector of Land Records, Surendranagar has given statement that the possession was with the deceased Halubha and consequently the possession of the respondents is justified. Therefore, since, the respondent No.2 is having the title, the prayer as prayed in the petition, cannot be entertained. It is therefore, desirable that the claim made by the petitioner is directed to be examined by the Collector based on the independent evidence and material including the measurement made by the DILR in respect of both these land of Survey Nos.524 and 527, for which the claim is made by the petitioner and the same will be considered according to the order of the original allotment.
11.Again, the petition is under Articles 226 and 227 and considering the issue involved with regard to the entitlement or the measurement of the land, it is desirable to have a fresh measurement that may be made by the DILR of the land bearing Survey Nos.524 and 527 to decide the claim of the petitioner in accordance with law preferably within a period of three months. The petitioner cannot claim both these lands. It goes without saying that the Collector, Surendranagar shall examine the same on the basis of the material and evidence including the measurement made by the DILR at the relevant time as well as fresh measurement that may be required for the purpose. The Collector, can take assistance of the DILR for the measurement and thereafter shall proceed to decide the claim made by the petitioner for a particular land of a particular Survey number. He will clearly decide as to whether the claim of the petitioner can be sustained out of land bearing Survey No.524 or out of land Page 8 of 9 C/SCA/1144/2005 JUDGMENT bearing Survey No.527, but the petitioner cannot claim both these lands. The Collector shall decide as stated above preferably within a period of three months.
12.With the aforesaid observations and direction, the present petition stands disposed of. Rule is discharged. No order as to costs. Interim relief, granter earlier, if any, shall stand vacated.
(RAJESH H.SHUKLA, J.) Tuvar Page 9 of 9