Gujarat High Court
Laxmichand Mafatlal Heruwala vs State Of Gujarat And Ors. on 25 June, 1996
Equivalent citations: (1996)3GLR510
JUDGMENT A.N. Divecha, J.
1. The order passed by and on behalf of the State Government (respondent No. 1 herein) on 28th June 1985 under Section 211 of the Bombay Land Revenue Code, 1879 (the Code for brief) is under challenge in this petition under Article 227 of the Constitution of India. By its impugned order, respondent No. 1 set aside the order passed by the Collector of Banaskantha at Palanpur (respondent No. 2 herein) on 2nd February 1985, by which order respondent No. 2 granted to the petitioner one piece of land admeasuring 192.31 square metres (83 ft. x 26 ft. = 2,158 sq.ft.) from Government land bearing Sheet No. 38 (Part) situated at Nava Deesa, taluka Deesa (the disputed land for convenience).
2. The facts giving rise to this petition move in a narrow compass. The petitioner is a Government servant. He applied on 25th May 1983 for grant of a piece of land admeasuring 40 ft. x 26 ft. from Government land bearing Sheet No. 38 situated at Nava Deesa, taluka Deesa as he had no residential house in the town. Its copy is at Annexure-A to this petition. It appears that his application was not considered. Thereupon, he made another application to respondent No. 2 on 31st July 1984 praying for grant of a little larger piece of land admeasuring 83 ft. x 26 ft. in all admeasuring 2,158 sq.ft. (192.31 square metres) for his residence. Its copy is at Annexure-B to this petition. By his communication of 16th January 1985, respondent No. 2 informed the petitioner that the latter's application was under consideration and the land could be granted at the price of Rs. 65/- per square metre and the amount in the sum of Rs. 12,500/- might be paid within 21 days and the receipt thereof might be submitted to the Collector. Its copy is at Annexure-C to this petition. It appears that, pursuant thereto, the petitioner paid up Rs. 12,500/- on 19th January 1985. A copy of its receipt is at Annexure-D to this petition. Thereafter, by his order passed on 2nd February 1985, respondent No. 2 granted the disputed land in favour of the petitioner on certain terms and conditions. Its copy is at Annexure- E to this petition. It appears that, pursuant thereto, a possession receipt was passed on 2nd February 1985. Its copy is at Annexure-F to this petition. It appears that respondent Nos. 3/1 to 3/7 (the contesting respondents for convenience) were aggrieved by the aforesaid order at Annexure-E to this petition. They, therefore, carried the matter in revision before respondent No. 1 under Section 211 of the Code. After hearing the parties, by the order passed on 28th June 1985, respondent No. 1 accepted the revisional application and set aside the order passed by respondent No. 2 at Annexure-E to this petition. A copy of the aforesaid order passed on 28th June 1985 is at Annexure-G to this petition. The aggrieved petitioner has thereupon approached this Court by means of this petition under Article 227 of the Constitution of India for questioning the correctness of the order at Annexure-G to this petition.
3. Both the learned Assistant Government Pleader Shri Sompura for respondent Nos. 1 and 2 and learned Advocate Kum. Shah for the contesting respondents have submitted that this petition under Article 227 of the Constitution of India is not maintainable. Thereupon, learned Advocate Shri Patel for the petitioner has orally applied for permission to treat this petition as also under Article 226 of the Constitution of India. This oral request is accepted and this petition is ordered to be treated as also under Article 226 of the Constitution of India on payment of the deficit Court-fees, if any, within fifteen days from today.
4. Learned Advocate Shri Patel for the petitioner is right in his submission that respondent No. 1 could not have exercised its revisional powers under Section 211 of the Code in view of the fact that the order of respondent No. 2 at Annexure-E to this petition is basically the order of respondent No. 1 itself. It becomes clear from the order at Annexure-E to this petition that the disputed land was situated within the Municipal limits and the proposal for its grant was sent to respondent No. 1 and by its order passed on 9th January 1985 such proposal was accepted and thereupon the petitioner was granted the disputed land by the order of respondent No. 2 at Annexure-E to this petition. It thus becomes clear that respondent No. 2 has merely acted as an agent for conveying the decision of respondent No. 1 regarding grant of the disputed land in favour of the petitioner. Simply because the order at Annexure-E is passed by respondent No. 2 and certain conditions are attached to the grant of land would not convert the grant by respondent No. 1 to be the grant by respondent No. 2. Even at the cost of repetition, I may reiterate that the order of grant was passed by and on behalf of respondent No. 1 and respondent No. 2 has merely passed a formal order of grant at Annexure-E to this petition. In this view of the matter, there is no escape from the conclusion that the order of grant of the disputed land in favour of the present petitioner is passed by respondent No. 1 though it was formally made by respondent No. 2 herein. When it is found that the order of grant is passed by respondent No. 1, no revision under Section 211 of the Code would be competent as it would amount to revision to Caesar from Caesar.
5. It appears that the author of the order at Annexure-G to this petition had taken this view in some other matter by his order passed on 18th September 1984. Its copy is at Annexure-H to this petition. It appears from the impugned order at Annexure-G to this petition that the order at Annexure-H to this petition was brought to the notice of the author of the order at Annexure-G to this petition. It is strange and surprising that the author of the order at Annexure-(i to this petition has given no reasons whatsoever for departing or deviating from his earlier view as reflected in his order at Annexure-H to this petition. Be that as it may, the revisional application under Section 211 of the Code would not be competent against the order at Annexure-E to this petition as pointed out by me hereinabove.
6. Despite my aforesaid discussion, this petition deserves not to be accepted on one main consideration. It is the case of the contesting respondents that the disputed land was a Municipal street land and it could not have been granted in favour of the petitioner in view of the relevant provisions contained in Section 65 read with Sections 146 of 148 of the Gujarat Municipalities Act, 1963 (the Act for brief). It appears that the author of the impugned order at Annexure-G to this petition has also prima facie found the disputed land to be a part of a public street. He has, therefore, remanded the matter to respondent No. 2 for making an inquiry in that regard and to decide the fate of the applicant's application afresh after making inquiry. This order of remand calls for no interference by this Court in this petition under Articles 226 and 227 of the Constitution of India.
7. On behalf of the contesting respondents, respondent No. 3/1 has filed a reply affidavit. In para 8.4 therein, it has clearly been mentioned that the petitioner was required to file Regular Civil Suit No. 9 of 1988 on 4th February 1984 against the Municipality at Deesa for restraining it from digging or constructing any kind of road on the land granted to him. It further transpires therefrom that the Court did not grant any interim relief to the petitioner herein in that regard on the ground that the petitioner's case that he was in possession of the disputed land was not accepted by the Court. The petitioner has not chosen to controvert the averments made in para 8.4 of the reply affidavit by means of any rejoinder. In that view of the matter, such averments made in the reply affidavit will have to be accepted. That would prima facie support the conclusion that the disputed land is a part of a public street. It could not have been granted in view of the aforesaid statutory provisions and in view of the ruling of this Court in the case of Manjulaben Rameshchandra Barot v. Collector of Mehsana, reported in 1996(1) GLR 306.
8. It may be mentioned at this stage that the petitioner has concealed the fact of his having instituted the aforesaid suit proceeding from this Court. Since he was required to file the aforesaid suit proceeding with a view to preventing the Municipality to widen the road even in the disputed land, it would prima facie show that it could be a part of a Municipal public street. That fact would be material and vital for the purpose of deciding the fate of this petition. The author of the impugned order at Annexure-G to this petition has remanded the matter to respondent No. 2 for the purpose of verifying whether or not the disputed land forms a part of a Municipal public street. In that context, the suit proceeding instituted by the present petitioner would assume importance and significance. Non-disclosure or concealment of any material and vital fact from this Court would amount to the attitude of suppressio veri on the part of the petitioner. It cannot be gainsaid that the jurisdiction of this Court inter alia under Article 226 is discretionary in nature. It is designed to grant inter alia equitable reliefs to the petitioning litigant. The basic principle of equity is that the petitioner has to come to the Court of equity with clean hands. It would mean that he has to disclose all material and vital facts to the Court and he should not be guilty of suppressio veri or suggestio falsi. Any wilful suppression of any material and vital fact would disentitle the petitioning litigant from obtaining an equitable relief from this Court under Article 226 of the Constitution of India. This petition deserves to be rejected also on this ground alone.
9. In view of my aforesaid discussion, 1 am of the opinion that the impugned order at Annexure-G to this petition calls for no interference by this Court in this petition under Articles 226 and 227 of the Constitution of India. It, therefore, deserves to be rejected.
In the result, this petition fails. It is hereby rejected. Rule is accordingly discharged with no order as to costs.