Gujarat High Court
Laxmanbhai Shambhubhai vs State Of Gujarat & on 10 October, 2013
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
LAXMANBHAI SHAMBHUBHAI....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/8334/1997 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8334 of 1997 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ================================================================ 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 ? ================================================================ LAXMANBHAI SHAMBHUBHAI....Petitioner Versus STATE OF GUJARAT & 3....Respondents ================================================================ Appearance: MR RV DESAI, ADVOCATE for the Petitioner MS SHRUTI PATHAK AGP for the Respondents No. 1 - 3 MR TUSHAR MEHTA, ADVOCATE for the Respondents No. 4.1 - 4.6 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/10/2013 ORAL JUDGMENT
Heard learned advocate for the petitioner and learned AGP for the respondent State.
The petitioner, by way of this petition under Article 226 of the Constitution of India, has approached this Court with following prayers:
(A) An appropriate writ, order or direction be issued quashing the orders at Annexure A, B and C and to hold that the provisions of Section 67 and 79 and such other provisions of the Bombay Land Revenue Code for forfeiture of the land in question are not applicable in the present case and/or (B) by an appropriate order direction for delay in preferring petition may kindly be condoned; and/or Pending hearing and final disposal of this petition, the respondents No. 1 to 3 be directed to stay the execution of the orders for taking possession of S.No. 1 Paiki Acre 1 and 30 gunthas of village Juna Vaghania be issued in the interest of justice.
Any other order or direction as the nature of the case may require in the interest of justice and costs throughout be awarded in favour of the petitioner.
Thus, what is essentially under challenge is the orders dated 25.4.1984, 1.10.1984 and 19.4.1985, whereunder, the original order dated 25.4.1984 is confirmed against him.
The facts in brief leading to filing this petition deserve to be set out as under in order to appreciate the contentions raised in the memo of petition.
The petitioner purchased land admeasuring 2 acre 30 gunthas by registered sale deed from one Jivrajbhai Kanabhai. The land in question was not in fact in any manner alienable and hence, the proceedings were taken up by concerned Deputy Collector, Amreli, which culminated into the order dated 25.4.1984. The authority observed that the tenure of the land was restricted tenure of land and hence, it was not in any manner alienable at the behest of the person, who has been re-granted the land by original owner by way of regrant under order of the Collector dated 15.12.1966 and that land being inalienable, the same could not have been subject matter of any sale. Hence, the order was passed. The said order was not assailed by the petitioner in any manner. However, it is required to be mentioned here that another portion of land of such nature by the very same vendor given to one Laljibhai Jivrajbhai was also subject matter of the same order and that Laljibhai Jivrajbhai assailed the order of Deputy Collector, wherein, the Collector vide order dated 1.10.1984 ordered that the land was inalienable but it could not have been re-granted to the original owner and he ordered it to be vested in the State as originally the land was only a grant for the State and nature of holding was restricted inalienable tenure. This order was also not challenged by the petitioner in any forum. However, said Laljibhai Jivrajbhai, who was purchaser of another parcel of land from the same vendor preferred Revision Application before the Special Secretary, who also confirmed the order of the Collector and rejected the Revision Application on 19.4.1985. It is pertinent to note that the petitioner did not challenge the order of Collector. He was not party before the Special Secretary and it seems that he preferred Revision Application being Revision Application No. TEN.BA.25 of 1986 before the Gujarat Revenue Tribunal, which came to be returned by the Tribunal vide its order dated 22.3.1995. The said owner of another parcel of land namely Laljibhai Jivrajbhai has preferred writ petition being Special Civil Application No. 3247 of 1985 before this Court, in which the Court vide order dated 29.11.1996 dispose of the matter and remanded the matter back to the concerned authority, as it is contended by learned advocate for the petitioner.
Learned advocate for the petitioner contended that the petitioner s not challenging the order dated 25.4.1984, 1.10,1984 and 19.4.1985 in itself would not be sufficient ground for non-suiting the petitioner in the proceedings under Article 226 of the Constitution of India. The petitioner on account of his situation was not in a position to challenge the order and therefore, the petitioner could not be said to be thus visited with drastic situation, where no remedy would be available to him.
Learned advocate for the petitioner submitted that in fact, the another purchaser, Shri Laljibhai Jivrajbhai s matter has been remanded back to the concerned authority and the Court may pass similar order in the instant case also, as it would be in the interest of justice as the land involved in the said proceedings was the another parcel of land, purchased by Laljibhai Jivrajbhai from the same vendor and on that count also, this Court initially granted interim relief in favour of the petitioner.
Learned AGP appearing for the respondent State contended that the petitioner has no right to revive the challenge, which was never there before the concerned authority. The petition is hopelessly suffering from vice of inordinate delay and latches. The petitioner, who chose not to challenge the order of the Deputy Collector in any forum, cannot place reliance upon the orders, which are also not in favour of similarly situated persons, to challenge those orders, without in fact indicating any orders against the order dated 25.4.1984 by pleading his own matter. The petitioner has chosen not to challenge the order dated 25.4.1984 and therefore the cause which the petitioner abundant cannot be permitted to be revived by way of present petition.
This Court is of the considered view that the petition is required to be dismissed for the following reasons namely-
The fact remains to be noted that the order of Deputy Collector dated 25.4.1984 was in fact in respect of two persons namely present petitioner and one Laljibhai Jivrajbhai. It was also in respect of two parcels of land, which was earmarked clearly and referred in the order itself. The said Laljibhai Jivrajbhai carried the order into further proceedings and brought it to its logical end by way of preferring Special Civil Application and therefore, the petitioner only on that ground cannot be placed reliance upon the order as, so far petitioner is concerned, it can be said that the petitioner did not pursue the grievance, if any, after passing of the order dated 25.4.1984. The petitioner cannot be said to be saddled with any handicapped as sought to be made out only by way of oral argument, which would have given some ground for petitioner s delay. Learned advocate for the petitioner has not indicated anywhere in the memo of petition as to how and in what manner such pleadings are made. Learned advocate for the petitioner has invited this Court s attention to para-3 of the memo of petition and contended that on account of financial condition, the petitioner could not engage advocate, but in fact, the record indicates that petitioner chose wrong forum and the petitioner has not availed the remedy and had availed the remedy before the Gujarat Revenue Tribunal in the year 1986, as could be seen from page-29 that the petitioner has preferred Revision Application before the Gujarat Revenue Tribunal and there, the petitioner is represented by an advocate. Thus, the petitioner took incorrect stand in the memo of petition regarding his financial constraint.
The Court is also of the considered view that the petitioner has not challenged the order dated 25.4.1984 till he files appeal in the Gujarat Revenue Tribunal, where admittedly, the Gujarat Revenue Tribunal has no jurisdiction. Fact remains to be noted that the petitioner moved the Gujarat Revenue Tribunal also is of no avail to petitioner, as it cannot be said to be a forum available nor can it be said a forum available to challenge the order dated 1.10.1984 or 14.4.1985 as the petitioner was not even party there nor was he concerned with any of those orders.
The Court is also of the considered view that in fact the conduct of the petitioner appears to be full of delay and latches and when the petitioner has chosen not to avail his remedy and he has filed petition only after the order of this Court passed on 29.11.1996 in Special Civil Application No. 3247 of 1985, then, this cannot be permitted to be allowed at this stage or else, it amounts to premium to his own delay and latches. The ground qua financial constraint is not justified as the Gujarat Revenue Tribunal is moved in the year 1985 and it was moved after petitioner engaged an advocate.
The order which is pressed into service is in my view not helpful to the petitioner in any manner as that order also, would not land any ground to the petitioner for even bringing the petition as petitioner will have to stand on his own leg and grounds available to him. Learned AGP is absolutely justified in her submission that petitioner, who has abundant cause, cannot now be permitted to resurrect receract.
In view of the above, the Court is of the considered view that the petition is merit-less, deserves rejection and is rejected accordingly. Rule is discharged. Interim relief, if any, stands vacated. There shall be no order as to costs.
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